[fcb-l] FW: [leadership] FW: Article on web accessibility and the law
pedwards at mdc.edu
Thu Sep 9 14:55:54 GMT 2010
From: leadership-bounces at acb.org [mailto:leadership-bounces at acb.org] On Behalf Of Peter Altschul
Sent: Wednesday, September 08, 2010 5:24 PM
To: VICUG-L at LISTSERV.ICORS.ORG; 'Adaptive technology information and support.'; leadership at acb.org
Subject: [leadership] FW: Article on web accessibility and the law
>From the web page
Accessibility and the Law: How good UX can keep you out of court
By Gregory P. Care / September 7th 2010
Website accessibility is obviously an integral part of user experience; a
negative user experience is certain to occur when a consumer cannot access a
commercial website, which, in turn, almost always carries negative business
consequences. To make matters worse, an inaccessible website may also expose
the site owner and/or designer to legal liability.
Accessing the Internet as an Individual with a Disability
Since the Internet transitioned from a predominantly text-based to a
graphics-based phenomenon, accessibility of websites has been an issue for
individuals with disabilities, most notably those with vision or mobility
impairments who cannot easily use standard computer equipment. The number of
Americans with such disabilities (already in the millions) is growing each
day as aging baby boomers-who have disposable income and are accustomed to
spending that income online-develop these disabilities. Individuals with
these disabilities rely on adaptive technologies, such as screen reading
software, to provide them with feedback that helps them navigate through web
pages, obtain information, purchase goods, and contract for services. As a
result, website designers should observe some well documented, basic
programming tenets when creating or updating webpages to allow users of
adaptive technologies to access websites.
Indeed, a website created in accordance with "universal design" typically
benefits both disabled and nondisabled users. For example, a website
designed to be universally accessible is typically organized better than an
inaccessible site, permitting better ease of use and a superior user
experience. Further, simple programming techniques allow a universally
accessible website to be as aesthetically pleasing as the designers'
imaginations will permit. In other words, accessibility is not mutually
exclusive of creativity.
Why Accessibility Is Important
There are several reasons it is important to proactively make a website
accessible. First, an accessible website expands a business's market to
include individuals with disabilities who use the Internet to shop and do
research in the same way nondisabled individuals do. In fact, most
disability communities share amongst each other which sites to use because
they are accessible and which to avoid because they are not. Second,
retroactively correcting years' worth of inaccessible programming consumes
vastly more financial and programming resources than taking simple steps to
make a website accessible when it is initially designed or substantially
updated. Third, an accessible site avoids exposure to potential lawsuits.
The Americans with Disabilities Act and the Internet
The principal law pertaining to accessibility of commercial websites is the
Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 et seq. Title III
of the ADA prohibits discrimination against an individual "on the basis of
disability in the full and equal enjoyment of the goods, services,
facilities, privileges, advantages, or accommodations of any place of public
accommodation...." Discrimination includes denial of participation as well
as provision of separate, but unequal, goods or services. "Public
accommodation" is defined to include operations that "affect commerce;" the
law provides 12 general categories of covered businesses such as hotels,
restaurants, places of entertainment, sales and rental establishments,
service establishments, places of recreation, and places of education. The
law also requires affirmative "reasonable modifications" of "policies,
practices, and procedures" to make them equally accessible.
The United States Supreme Court has yet to specifically rule that Title III
requires private companies to make their websites accessible, but there has
been significant guidance from the lower federal courts and the United
States Department of Justice (DOJ), which enforces the ADA, that Title III
does apply to commercial websites. Many major businesses, including AOL,
Amazon, and Target, have relied on this guidance in deciding to make their
websites accessible pursuant to Title III.
One of the landmark cases on this issue is Carparts Distribution Center,
Inc. v. Automotive Wholesaler's Ass'n of New England, Inc., 37 F.3d 12 (1st
Cir. 1994). Although Carparts does not actually concern the Internet, it is
important because it establishes that "public accommodation" as defined in
Title III is not limited to physical structures. Another federal appeals
court later adopted the logical foundation laid by the Carparts decision and
added that the purpose of Title III
is that the owner or operator of a... Web site, or other facility (whether
in physical space or in electronic space) that is open to the public cannot
exclude disabled persons from entering the facility and, once in, from using
the facility in the same way that the nondisabled do.
Doe v. Mutual of Omaha Ins. Co., 179 F.3d 557, 559 (7th Cir. 1999) (citation
Like Carparts, however, Doe did not specifically involve a claim regarding
accessibility of a website.
The Target Case
Subsequent litigation, however, leaves little question that Title III
requires commercial websites to be accessible. The key legal decision in
this regard is National Federation of the Blind v. Target Corp., 452 F.
Supp. 2d 946 (N.D. Cal. 2006). In that case, the plaintiffs claimed that
Target's website, target.com, which offered goods for sale and provided
information regarding services offered at brick-and-mortar Target stores,
was inaccessible and thus in violation of the ADA and California state law.
Target moved to dismiss the claim on the grounds that the laws did not apply
to the website. The court rejected Target's argument and focused on the
plain language of the ADA in ruling that Target's brick-and-mortar stores
are "public accommodations" under the definition set forth in Title III.
The court then determined that target.com was a "service" of Target's stores
in light of the transactional and informational connections between the two.
It was just a matter of finishing the syllogism that, as a service of a
public accommodation, Target.com was subject to Title III. The ruling in
Target was based on the "nexus" between the website and the brick-and-mortar
stores. Another court in an earlier case, Access Now v. Southwest Airlines,
227 F. Supp. 2d 1312 (S.D. Fla. 2002), reached a different conclusion than
the Target court because the website at issue was not related to a physical
place of business. This factor, however, may no longer be part of the
analysis after the DOJ issues proposed regulations regarding the ADA's
applicability to the Internet.
Upcoming Regulations and the Probable Expansion of the Target Ruling
In conjunction with the 20th anniversary of the ADA, the DOJ has clearly
expressed that it regards commercial websites as being covered by the ADA.
On April 22, 2010, Samuel R. Bagenstos, the Principal Deputy Assistant
Attorney General for Civil Rights, testified before a House subcommittee
[t]he Department of Justice has long taken the position that... websites of
private entities that are public accommodations are covered by the ADA. In
other words, the websites of entities covered by... Title III of the [ADA]
are required by law [to be] fully accessible to individuals with
Emerging Technologies and the Rights of Individuals with Disabilities:
Hearing Before the Subcomm. on the Constitution, Civil Rights, and Civil
Liberties of the H. Comm. on the Judiciary, 111th Cong. 5 (2010).
Bagenstos went on to describe the DOJ's two "friend of the court" briefs
filed in federal appeals courts where the Department expressed the position
that "a business providing services solely over the internet is subject to
the ADA's prohibitions on discrimination on the basis of disability." Id. at
6. Then, in July, the DOJ released a notice that it was considering
regulations on the subject of commercial websites' compliance with the ADA.
Nondiscrimination on the Basis of Disability; Accessibility of Web
Information and Services of State and Local Government Entities and Public
Accommodations, 75 Fed. Reg. 43460 (proposed July 26, 2010). The notice
reiterated the position previously stated by Bagenstos and declared that
"the Department is focused on the goods and services of public
accommodations that operate exclusively or through some type of presence on
the Web-whether hosting their own Web site or participating in a host's Web
site..." Id. at 43465 (emphasis added). This clearly indicates that the DOJ
is considering an expansion of the Target and Access Now decisions to
require public accommodations that do not have a brick-and-mortar presence
to make their websites accessible.
Other Laws and Designer Liability
In addition to the ADA are state laws, such as California's Unruh Civil
Rights Act and Disabled Persons Act, which are at least co-extensive with
the ADA in terms of scope and permit damage awards. These monetary damage
awards are even more incentive for a business to make their websites
accessible than the standard consequence under Title III of a court
compelling a website to be made accessible. The Unruh Civil Rights Act also
makes it illegal to aid or abet discriminatory activity, which implicates
the actions of website designers as well as website owners. Further, these
state laws could very well be interpreted to extend even further than the
ADA with respect to accessibility of commercial websites, particularly in
the context of online-only businesses.
What Does This All Mean?
In sum, it is clear that Title III applies to commercial websites and there
are increasing indications that the DOJ intends to make no distinction
between businesses with brick-and-mortar locations and those that operate
solely online. In addition to the legal considerations, there are sound
business reasons to design accessible websites, including a better user
experience for all consumers, avoiding higher costs of retroactive
compliance with the law, and increased revenues by capitalizing on an
expanded market. Who ever said doing the right thing had to be difficult?
Lainey Feingold (not verified)
7 September 2010, 22:44 (Permalink)
Thanks for this article Greg. Readers may also want to know about the large
commercial sites that have become accessible as a result of Structured
Negotiations - a non-litigation approach to solving disability technology
issues. Entities committing to accessibility as a result of that process
include Major League Baseball, Bank of America, and CVS. To read web
accessibility press releases issued by these entities and more, visit
reply Darrell Estabrook (not verified)
8 September 2010, 09:38 (Permalink)
We should all be sensative to disabled persons' needs in all areas of life,
but the law itself seems so gray. What is the baseline for validating what
"full and equal enjoyment" means? Of course, this is what the mentioned
court cases (and all those to follow, it seems) will be about.
Reading WCAG and other website standards for defining accessibility
demonstrates the difficulty in creating a pigeonhole for disabled persons.
Not only are there different disabilities, but different levels of
disabilities. Even looking at standard users where there are different
computers running different browsers, most sites are not created to provide
"full and equal enjoyment" to all those browser variations, but instead
"degrade gracefully". Would those be in violation of "full and equal
enjoyment" from an accessibility perspective?
There is something to be said about laws and standards, but when the laws
attempt to cover everything troubles begin. If business were savvy, they
wouldn't need airtight laws because they would cater to website users of all
abilities. As mentioned in the article, a negative user experience can
translate to lower profits.
About the author(s)
Gregory P. Care is an attorney at the law firm Brown, Goldstein & Levy, LLP
in Baltimore, Maryland where his practice includes disability rights. Brown,
Goldstein & Levy was one of several firms that represented the plaintiffs in
the National Federation of the Blind v. Target Corp. class action lawsuit
that resulted in a settlement to make Target.com accessible.
Also from the author(s)
Accessibility and the LawGet connected.
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