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Written by: Timothy Stephen Springer
12 years ago

As mentioned in yesterday’s blog post, the United States has several laws which are aimed at eliminating discrimination on the basis of race, color, religion, sex, disability, familial status, and national origin. Of those, some of them explicitly discuss discrimination relevant to Electronic and Information Technology. Of them, the one most relevant to private sector entities is the Americans with Disabilities Act (ADA).

The ADA is a wide-ranging civil rights law that prohibits, under certain circumstances, discrimination based on disability. It affords similar protections against discrimination to Americans with disabilities as the Civil Rights Act of 1964, which made discrimination based on race, religion, sex, national origin, and other characteristics illegal.

On September 25, 2008, President George W. Bush signed into law The ADA Amendments Act of 2008 (ADAAA). It is intended to give broader protections for disabled workers and “turn back the clock” on court rulings which Congress deemed too restrictive.
As it relates to EIT accessibility, ADA Title II specifically mandates that state and local government websites be accessible. In content provided on the ADA website, the DoJ says:

The Americans with Disabilities Act (ADA) and, if the government entities receive Federal funding, the Rehabilitation Act of 1973, generally require that State and local governments provide qualified individuals with disabilities equal access to their programs, services, or activities unless doing so would fundamentally alter the nature of their programs, services, or activities or would impose an undue burden.

Procedures for determining compliance with the ADA and handling grievances involving ADA compliance vary depending upon a variety of factors relating to the type and size of the entity. For instance, state & local agencies with 50 or more employees are required to have established at least one employee responsible for managing ADA-compliance including the publication of compliance related notices and procedures and the handling of all complaints. Similarly, a variety of avenues exist for an individual with a disability to seek resolution of an ADA related concern depending on the context. These avenues range may include:

  • Informal complaint
  • Formal complaint via documented grievance procedure (such as that of the employer, school, or government agency)
  • Filing of private legal action in federal court
  • Formal complaint to the federal government agencies responsible for compliance (depending on context) such as:
    • EEOC
    • Department of Education
    • Department of Justice

Complaints submitted to the DOJ are handled by the Office on the Americans with Disabilities Act, who will try to resolve the issue via the ADA Mediation Program. In some cases, the Department of Justice may file lawsuit to enforce ADA compliance:

Complaints of Title II violations may be filed with the Department of Justice within 180 days of the date of discrimination. In certain situations, cases may be referred to a mediation program sponsored by the Department. The Department may bring a lawsuit where it has investigated a matter and has been unable to resolve violations.

Although the majority of ADA enforcement activity by the DoJ is based on physical access and discriminatory behavior, they frequently also deal with EIT accessibility as well. For instance, in the first quarter of 2009:

An individual who is blind complained that a Texas credit union’s online bill payment service was inaccessible to customers who use audio screen readers. The credit union worked with the company providing its online bill payment software to include an alt tag providing text information for each image and graphic displayed on its bill payment web pages, enabling a person with a vision disability to understand what each image or graphic represents. The complainant has since been able to access the online bill payment service to regularly pay her bills via the credit union’s website.

ADA Related Cases

While the Rehabilitation Act compels the Federal Government to offer accessible EIT, it is not applicable to the private sector. All accessibility-related legal action taken in the private sector allege violations of the ADA. As outlined below, several cases have provided further evidence that websites and other IT systems are covered under ADA.

  • US DoJ v. City of Port St. Lucie, FL (2006)
    • General ADA audit of the City’s ADA policies & procedures
    • Result: Settlement agreement which, among other things, included improvements in the city’s website
  • Hooks v. OKBridge
    • Resulted in USDOJ brief stating that websites are a place of public accommodation, June 2000
  • Carparts Distribution Center v. Automotive Wholesalers Association of New England
    • Result: ruled websites are a place of public accommodation. 1994
  • Doe v. Mutual of Omaha (1999)
    • Result: also held the web is a place of public accommodation
  • California Council of the Blind v. Bank of America, 2000
    • Result: Bank of America agreed to make Website and ATMs accessible (WCAG 1.0 P1)
  • Bay State Council of the Blind, et al. v. Fleet National Bank
    • Result: Fleet agreed to make Website and ATMs accessible (WCAG 1.0)
  • NFB v. HDVest, Intuit, H&R Block, and Gilman & Ciocia, 2000.
    • Result: agreed to make changes to conform to WCAG 1.0
  • ACB, AFB, CCB v. CVS, 2009
    • Result: Settlement Agreement. Agreed to make point-of-sale systems and website accessible (WCAG)
  • ACB, AFB, CCB v. Staples, 2009
    • Result: Settlement Agreement. Agreed to make point-of-sale systems and website accessible (WCAG 1.0 P1 & P2)
  • ACB, AFB, CCB v. Rite Aid, 2008
    • Result: Settlement Agreement. Agreed to make website accesible (WCAG)
  • NFB v Target, 2006
    • Result: Settlement Agreement (2008). $6,000,000 plus legal fees, Agreed to make website accessible (NFB NVA by 2009)
  • Smith v. Hotels.com, 2009
    • Result: Settlement Agreement. Agreed to make Hotels.com and Expedia.com reservation services accessible
  • State of NY v. HSBC, 2009
    • Result: Settlement Agreement. “Under the agreement, the company will offer customers with disabilities improved communication options and services, as well as a fully accessible Web site”

Does ADA Apply to Me?

In short, yes. The ADA applies to you if:

  • If you are a state or local government agency which receives federal funding
  • If you are an online retailer
  • If you employ others
  • If you are a software manufacturer or web developer

US State Laws

As discussed above, all states and local governments are compelled to make their EIT accessible through the Rehabilitation Act and the ADA. Additionally, each of the 50 states have at least some form of policy on accessibility. 42% of them have “508-like” requirements written into law to handle EIT procurements. As it relates to the private sector, some stays may also have anti-discrimination laws. This is particularly important to consider because, while the Rehabilitation Act and the ADA only allow for “injunctive relief”, state laws may allow for punitive damages as well. One such instance is the Unruh Act, which does allow for punitive damages.

Find out more about how to manage compliance with ADA in an upcoming blog post.