No, and in my view, many times it’s worse.
Let’s start off with the basic truths about this class of accessibility solutions that we’ve developed over the last few posts on this topic:
- Overlays and widgets fail to provide an experience that is full or equal to people with disabilities
- Overlays and widgets provide an experience that is fundamentally separate from and unequal to the primary experience of users
- Overlays and widgets fail to provide “effective communication”
Given those three points, I would hold the view that in deploying an overlay or widget as your solution for accessibility you are deploying something you reasonably should know does not provide a path to conform to the ADA. That means you are continuing to act in a discriminatory fashion and the point of the law is to remove discrimination—that’s what a valid solution must do.
Think about it this way: would you ever say something like, “Ending discrimination is too hard. Let’s just discriminate a little less than we used to.” No. Instead, you’d ask, “How do we get a clear path to not discriminating and conforming to the law?”
In addition to not meeting the requirements of the law—a purchase of an overlay solution diverts funds from addressing the issues in the website itself. Furthermore, choosing an overlay does not build capacity in an organization to understand and address accessibility issues or prioritize feedback from users with disabilities. Many overlay solutions cost a significant amount of money and that amount of money over years may actually be more than the amount needed to address the site directly. Because overlay solutions are laid on top of existing sites, they tend to be fragile, requiring updates and continuous work to maintain any fixes when changes are made to the site. This means an overlay solution does not fundamentally address changes in the policy, practices, and procedures of an organization for digital accessibility.
The conclusion we’ve come to is informed by the idea that there’s some degree of due diligence required on the type of solution you are deploying to provide accessibility. You can’t just deploy any old solution—you’ve got some level of responsibility to ensure that solution actually works for the usage needs of people with disabilities. So, what level of research is needed?
Many widget solutions only provide accessibility fixes or optimizations when the widget is used in place of a user’s assistive technology. Users often have their technology configured in a way that works best for them with controls adjusted to preference. Users are also aware of the commands in their technology for effective navigation and operation. So, while the organization can make decisions about auxiliary aids and services, those decisions must consider the needs of people with disabilities.
Adding accessibility features, in this as in widgets as a whole, may be helpful for a small group of people who do not have assistive technology or who may be unaware of the accessibility features of their platform or browser, however, for many users switching off their assistive technology to enable a new and different technology for each website they visit is an overwhelming challenge.
Now, let’s go back to the law. Under 42 U.S.C. § 12182 (b) (2) (A) (iii) discrimination is defined as:
“A failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden.”
The regulatory record then expands this guidance a bit:
“The Department wishes to emphasize that public accommodations must take steps necessary to ensure that an individual with a disability will not be excluded, denied services, segregated or otherwise treated differently from other individuals because of the use of inappropriate or ineffective auxiliary aids.” — (1991 Preamble—Section 36.303)
This is the general requirement. Summarizing, that means you’ve got to do what is necessary to ensure the auxiliary aids and services are effective and appropriate (I’m sparing you another discussion of auxiliary aids and services and the related concept of effective communication in this post. For more on those, refer to my blog posts on Auxiliary Aids and Services and Effective Communication). In the preamble we also get this example:
“In those situations requiring an interpreter, the public accommodations must secure the services of a qualified interpreter, unless an undue burden would result.”
So, let’s use that as an example. If we are required to provide an interpreter, we can’t just pick anyone who claims to be an interpreter. We must do some due diligence. We must ensure that the interpreter knows what they are doing—that they are qualified. We’d argue that not doing that appropriate level of due diligence, and providing a bad interpreter, is an act of discrimination under the law. Why? Because it would make the interpreter (the auxiliary aid or service) ineffective, and that kind of activity is defined as discrimination above.
Let’s apply that same logic to websites. We need to make the site accessible. Therefore, we must take whatever steps are necessary to ensure we make it accessible in a way that is appropriate and effective. Deploying a solution that demonstrably—and based on an overwhelming evidence of opinion—doesn’t result in an effective accessible experience violates this requirement.
That’s the core problem we have with the “it’s better than nothing” attitude of deploying an accessibility overlay or widget. It’s not. You’re actively choosing to deploy something that you should reasonably know isn’t going to be effective. Further, as noted before, it creates an experience that causes people with disabilities to be “segregated or otherwise treated differently” than the primary users of the website. That’s the exact definition of discrimination under the law.
Content originally posted on Linkedin.