The ADA is constructed such that the general rule is supported by a variety of other clauses used to define and flesh it out further. As it relates to how we think about overlays and widgets—and the separate but equal issues we see with them—I’ll pull out two key requirements for your reference:

Requirement Law Regulation What it Means
Separate benefit 42 U.S.C. § 12182 (b) (1)(A)(iii) 28 CFR 36.202 (c) You can’t provide an alternate method of accessing or using whatever is being provided unless it is necessary to provide an alternate, equivalent method.  This and the requirement for integrated settings are meant to be interpreted in conjunction.
Integrated settings 42 U.S.C. § 12182 (b) (1)(B) 28 CFR 36.203 Accessibility must be provided in a fashion that is integrated with the overall goods and services provided at the place of public accommodation – think website for our purposes.   This doesn’t preclude providing experiences that are custom tailored to people with disabilities.   It precludes making those experiences the only method by which people with disabilities can interact with the goods and services.

Understanding this requirement is critical to understanding why specific things like widgets and overlays aren’t valid approaches for ADA compliance so we discuss it in more depth below.

Knowing this second requirement is critical to understanding why alternative solutions like overlays and widgets are not valid approaches for ADA compliance.

Integrated Settings

As part of discussing the concept of Integrated Settings for digital environments let’s start off with a few quotes discussing the issues from the preamble to the original Title III regulations released by the Department of Justice as it relates to the topic of integrated settings:

“The ADA recognizes that the provision of goods and services in an integrated manner is a fundamental tenet of nondiscrimination on the basis of disability. Providing segregated accommodations and services relegates persons with disabilities to the status of second-class citizens. For example, it would be a violation of this provision to require persons with mental disabilities to eat in the back room of a restaurant or to refuse to allow a person with a disability the full use of a health spa because of stereotypes about the person’s ability to participate.”

“Sections 36.203 (b) and (c) make clear that individuals with disabilities cannot be denied the opportunity to participate in programs that are not separate or different. This is an important and overarching principle of the Americans with Disabilities Act. Separate, special, or different programs that are designed to provide a benefit to persons with disabilities cannot be used to restrict the participation of persons with disabilities in general, integrated activities.”

“For example, a person who is blind may wish to decline participating in a special museum tour that allows persons to touch sculptures in an exhibit and instead tour the exhibit at his or her own pace with the museum’s recorded tour. It is not the intent of this section to require the person who is blind to avail himself or herself of the special tour. Modified participation for persons with disabilities must be a choice, not a requirement.”

“Further, it would not be a violation of this section for an establishment to offer recreational programs specially designed for children with mobility impairments in those limited circumstances. However, it would be a violation of this section if the entity then excluded these children from other recreational services made available to nondisabled children, or required children with disabilities to attend only designated programs.”

1991 Preamble – Section 36.203 Integrated Settings

A critical goal of the ADA is to ensure the integration of people with disabilities into society. To the fullest extent possible, the support for equal access needs of people with disabilities is meant to be provided as part of the core experience of the goods and services. It is not meant to be provided in a separate program. In fact, providing it as a separate program is defined as discrimination under the ADA.

That’s the core concept of “separate but equal” that the framers of the ADA were at pains to ensure was barred as a route for providing “accessible” solutions unless necessary to provide that accessibility. Summing that up with a quote from the above: “Separate, special, or different programs that are designed to provide a benefit to persons with disabilities cannot be used to restrict the participation of persons with disabilities in general, integrated activities.”

Forced to Choose ‘Separate’

Many widget solutions require the user to enter a particular mode such as a screen reader mode that will make the website more accessible with the keyboard or add accessible names that will be announced by the screen reader while sometimes changing the page visually. The assumption here is that users with disabilities fall into neat categories and a user of a screen reader will be blind, without vision, and so forth. While in reality, the majority of people who are visually impaired are partially sighted. Similarly, people who are not so visually impaired may rely on the keyboard or who use speech recognition to control their computer and need the accessibility properties used in the screen reader mode. Use of widget modes forces users into an experience that is separate, possibly not optimal for their needs but required to gain access to the modified version of the site.

That’s the critical point here with widgets, overlays and other add-on solutions to websites apart from their technical shortcomings. They fundamentally are separate from, and not integrated with, the experience of the site. They provide a separate and unequal experience for people with disabilities. They do not provide an integrated, accessible experience. An integrated, accessible experience is provided by making the primary site and code base accessible. It also happens to be a key and fundamental requirement of the ADA.

Now you could argue that’s absurd, that they are directly provided in the page itself and are therefore integrated. An overlay or widget approach may seem a ‘step up’ from a purely alternative site approach, however, requiring a user to use a widget-based assistive technology instead of their own, or forcing a user with a disability to use a modified view of the page (because it’s the version rendered accessible via a widget) is likely a separate and unequal experience. Like alternative sites, technically, overlays are separate from the site—make no mistake about that. Separate code base, separate vendor, separate development schedule, separate maintenance. The only thing that “integrates” them is a little piece of JavaScript code. Moreover, the whole point of this class of solutions is that it lets an organization outsource accessibility and provide an “overlay” experience on top of the site that is specific to people with disabilities. Plain language reading: that doesn’t sound like an integrated solution. It sounds like an alternative experience overlaid on top of the primary one. That, in turn, creates all kinds of actual issues for users with disabilities that I discussed in my previous post on “full and equal access.”

A Violation of the ADA

If you follow the laws and regulations and take the next logical step you get to a more pointed conclusion: deploying a widget violates the ADA in that it directly acts in a way the ADA describes as discrimination. Here’s what the ADA says about the matter (42 U.S.C. § 12182 (b) (1)(B)):

It shall be discriminatory to provide an individual or class of individuals, on the basis of a disability or disabilities of such individual or class, directly, or through contractual, licensing, or other arrangements with a good, service, facility, privilege, advantage, or accommodation that is different or separate from that provided to other individuals, unless such action is necessary to provide the individual or class of individuals with a good, service, facility, privilege, advantage, or accommodation, or other opportunity that is as effective as that provided to others.”

There is a little bit of daylight there. You could argue that deploying the widget is “necessary to provide the individual or class of individuals with a good, service, facility, privilege, advantage, accommodation, or other opportunity that is as effective as that provided to others.” The obvious problem with that is they are not “necessary” to provide the functionality. Directly providing accessibility via the site itself is a well proven, and integrated, route to providing accessibility. It’s what every credible expert in this space will counsel as the best course of action. It is not necessary to provide it in any other fashion.

As I noted in my last post, I actually started this inquiry with a qualified but open view of this set of solutions. The technology of overlays—using JavaScript to fix accessibility issues—works well and can address a variety of digital accessibility problems. As I dug more deeply into both the claims of the vendors and the core ADA compliance requirements though, that view shifted further and further to “no.” The above set of requirements in the ADA is really what tipped me over into the no camp. I fundamentally can’t see a way that these solutions aren’t separate—and they are clearly unequal. If you accept those two facts, you have to accept they are discriminatory in nature. Even if that conclusion is inconvenient.

This article from Tim Springer was originally published on LinkedIn.