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A common issue that arises in ADA Title III litigation is the concept of effective communication. The idea here is a little tricky. There’s a concept in the ADA of needing to provide effective communication for people with disabilities. A website, mobile app, or other technology is a way you communicate with your customers. An accessible website, mobile app, or other piece of technology can therefore be a valid method of providing that effective communication to an individual with disabilities. On the flip side, an inaccessible website or other technology blocks that communication.

I’m drastically oversimplifying with that description and leaving out the related concept of “auxiliary aids and services.” If you want a more extensive discussion, check out the twin posts in my ADA compliance blog series on Auxiliary Aids and Services and Effective Communication.

Testing for Effective Communication

Once you’ve got a clear understanding of the related concepts you can then proceed to the next step: testing for effective communication. At Level Access we employ a nine-part test to validate effective communication for a website. To determine if overlays and widgets are a valid solution, let’s apply that test and see how they do:

Requirement Description Pass / Fail Notes
Equivalent Does the approach provide equivalence of benefit (utility in economic terms) for the covered features and functionality? Does it work for a person with a disability? Fail As noted in my previous post—Do Accessibility Overlays and Widgets Provide Full and Equal Access as Required Under the ADA’s General Rule?—these solutions only provide limited access to features and functions of websites. They do not provide equivalent access.
Appropriate for the Medium Is the approach appropriate for the communication needs of the features and functions? Pass Broadly speaking, overlays and widgets do work well in the context of the web as a medium and align with the communication models for a website.
Self Service Is the accessibility approach self-service in nature? Pass Broadly speaking, overlays and widgets are self-service in nature.
Real Time Is the approach real time in nature? Pass Broadly speaking, overlays and widgets are provided in real time on the site.
Availability Is the approach available twenty-four hours a day, seven days a week? Tricky The core code of the overlays and widgets are provided twenty-four hours a day, seven days a week. Where it gets tricky is if the widget or overlay provides any secondary services—notably users asking for support on the widget functions and logging issues via the reporting functions of the tools. Unless these are also provided twenty-four hours a day, seven days a week there may be an Availability issue.
Consultation Was the approach arrived upon in consultation with people with disabilities? Fail None of the solutions we have seen implemented have been arrived at after discussions with people with disabilities. The consensus view of people with disabilities is “make the site directly accessible.”
Accessible Format Does it provide a valid accessible format?  In this case WCAG 2.0 or 2.1 Fail As noted in the‘ full and equal access’ post, these solutions can only ever provide compliance with a small subset of the WCAG 2.0 or 2.1 requirements. Despite some great marketing claims they cannot provide full compliance.
Privacy Does the accessibility approach protect the privacy of a person with disabilities to the same level as a person without disabilities? Fail One of the more interesting topics of discussion –  see below.
Independence Does the accessibility approach protect the independence of people with disabilities to the same level as a person without disabilities? Tricky As noted in the‘ full and equal access’ post the big issue here is that the tools require users to acquire and learn a secondary assistive technology to fully access the site. This places a material burden on a person with disabilities who expects to be able to use native functionality of the system and technology they are familiar with for access.

To be clear failing one of the above requirements is enough to rule any solution out as a valid one. Failing multiple indicates that a solution is fundamentally out of joint with legal and technical compliance requirements.

Privacy (and Security) Considerations

Some of the interesting questions that come up when testing the equivalence of overlays and widget solutions are related to the privacy and information security issues that would arise with these solutions. Equivalent privacy protections are called out as a discrete concern in assessing the effectiveness of communications. Nearly all reputable online vendors now provide strong safeguards for protecting the privacy of their customers. These safeguards are designed to be inherent in the systems themselves and, as a practical matter, cannot readily be separated from the primary system.

Think of the online system for your bank. The bank has invested millions of dollars in ensuring that system is secure, and that your personal data is protected. Providing a similar level of protection for privacy—which, to us, would seem a reasonable test—would be exceptionally difficult to achieve in a secondary system. Using the bank example: the bank did a huge amount of work to make the primary web experience private and secure. We are now introducing a secondary web experience overlaid on top of the primary experience. How do we know the secondary experience has the same level of privacy and security as the primary experience? It seems unlikely that’s the case given the huge level of investment needed to make the primary experience private and secure. Even if we got the overlay experience to the same level of privacy and security what happens when the underlying experience changes, as it does daily?  How do we know we have maintained that? Given those material considerations, it’s our decided view that the only way to effectively protect the privacy of a person with disabilities, and do that on par with protections provided to everyone else, is to do that in a way that makes the primary system directly accessible to such users.

As a side note, this concept aligns exceptionally well with the General Prohibition of the ADA related to Separate benefit covered under 42 U.S.C. § 12182 (b) (1)(A)(iii) and defined in more depth in the regulatory record at 28 CFR 36.202 (c). I also covered this in depth in my last post, Should Accessibility Overlays and Widgets Be Viewed As ‘Separate but Equal’ Solutions? Those requirements, as a whole, are meant to guard against providing alternative or separate experiences for people with disabilities. A key reason for that is the parity of experience in a “separate” environment is hardly ever “equal.” Privacy and security protections online are good examples of this.

It is also worth noting that the need to protect privacy and independence are balancing factors on the public accommodations “right” to define their approach to providing effective communication via auxiliary aids and services are provided. “While the public accommodation has the obligation to determine what type of auxiliary aids and services are necessary to ensure effective communication, it cannot unilaterally determine whether the patient’s privacy and confidentiality would be maintained.” This reinforces the strong recommendation we’ve included under the requirement, “Consultation – Did you arrive upon it in consultation with individuals with disabilities?” If you’ve arrived on a particular approach in discussion with a group of people, and that discussion includes relevant issues like privacy and security, you’ve got a reasonable assurance that you’ve provided something that (in the eyes of the person) protects their privacy. Overlays and widgets, even when exceptionally and carefully designed, fundamentally run afoul of this position.

Requiring a user to initiate a widget to effectively use a website also means that they must opt in to sharing their disability in order to use the website. Broadly speaking, a significant number of users with disabilities indicate that they may be treated differently or that their privacy has been invaded by methods that detect they are using assistive technology or accessibility features. A WebAIM screen reader survey found that 32% of respondents were either not very comfortable, or not comfortable at all with sites detecting use of screen readers. Recent allegations of online advertisers showing different ads based on whether they thought a person’s disability would impact their purchase decision triggered complaints from advocates as potential violations of laws such as the Fair Housing Act in the US which prohibits housing discrimination based on disability.

Content originally posted on Linkedin.