How does the Americans with Disabilities Act (ADA) relate to digital accessibility?

Session #2: Accessibility NextGen Mentorship Program

Last month I began participation in the Accessibility NextGen Mentorship Program, serving as an accessibility mentor to Ken Sumiyoshi, a former mechanical engineer who decided to pivot his career and become a UXUI designer and web developer. What is so exciting is that he is chose this path with the understanding that digital accessibility must be a fundamental part of his practice!

It is our plan to document the approach and information covered during this six-month mentorship program. We welcome anyone to join the journey with us by following along through this series of reflective articles based on our sessions. You might be a mentor looking for ideas for topics or structure, or an individual just getting started in digital accessibility. Our first session is highlighted here: How to Break Into the Digital Accessibility Profession: Perspectives from a Mentor in the Accessibility NextGen Mentorship Program.

I planned to fill the hour of our second meeting with discussion on the fundamentals of good semantic html when building a webpage. However, between our first and second sessions, Ken emailed me a series of questions that he hoped we would cover based on some of the research he was doing. They were so good that I decided to be flexible and structure the time around his questions. We plan to integrate more about accessible web development techniques into our next session.

This article has a lot of linked content, which can further support your studies. Be sure to check them out!

Question: How does the ADA relate to digital accessibility?

As Ken perused job ads for digital accessibility positions, he noticed that most jobs have a requirement that he have a solid understanding of the ADA or the Americans with Disabilities Act (ADA). He wanted to have a greater understanding of the ADA and how it would inform his work in the digital accessibility field.

The ADA is a federal civil rights law that prohibits discrimination against people with disabilities. From the Americans with Disabilities Act website:

The Americans with Disabilities Act (ADA) is a federal civil rights law that prohibits discrimination against people with disabilities in everyday activities. The ADA prohibits discrimination on the basis of disability just as other civil rights laws prohibit discrimination on the basis of race, color, sex, national origin, age, and religion. The ADA guarantees that people with disabilities have the same opportunities as everyone else to enjoy employment opportunities, purchase goods and services, and participate in state and local government programs.

As noted by author Emily Ladau in her book Demystifying Disability, a series of events and legislation led to the passage of this civil rights law, including the following:

Community Mental Health Act (CMHA) of 1963

An Act to provide assistance in combating mental retardation through grants for construction of research centers and grants for facilities for the mentally retarded and assistance in improving mental health through grants for construction of community mental health centers, and for other purposes. source

This legislation was enacted during President John F. Kennedy’s administration and sought to address some of the most grievous issues concerning the treatment of those struggling with their mental health. Up to this point, those with conditions such as schizophrenia were isolated from society and treated without dignity. They faced involuntary commitment in horrifying conditions in psychiatric institutions, which warehoused people with mental illness as well as those with developmental and physical disabilities. The abusive and degrading environments of these institutions are clearly illustrated by the situation at Willowbrook State School in New York. I highly recommend watching the heartbreaking documentary Unforgotten: Twenty-Five Years After Willowbrook, which includes Geraldo Rivera’s historic WABC-TV television exposé.

The policy initiatives embedded in the CMHA included an increase in research funding to support those in mental health facilitates, and even more important, support for therapies that would encourage people to be able to return to their communities. Another video worth watching to gain context on the CMHA is the program 50th Anniversary of the Community Mental Health Act.

Architectural Barriers Act of 1968 (ABA)

This law mandated that the physical or built environment be accessible to people with disabilities.

The law requires that buildings or facilities that were designed, built, or altered with federal dollars or leased by federal agencies after August 12, 1968 be accessible.The law requires that buildings or facilities that were designed, built, or altered with federal dollars or leased by federal agencies after August 12, 1968 be accessible. Facilities that predate the law generally are not covered, but alterations or leases undertaken after the law took effect can trigger coverage. source

For those interested in pursuing employment as a designer, builder, or architect of accessible built spaces, the IAAP has several levels of a credentialing process called the Certified Professional in Accessible Built Environments. This certification is designed to reflect an individuals “skills to implement built environment accessibility standards, codes, legislation, and apply universal design principles to environments in which we live, work, and play.”

The Rehabilitation Act of 1973

This civil rights legislation was multi-faceted in its approach to supporting disability rights. One aspect of the law is that it helped set up the oversight and compliance enforcement to meet conditions required by the ABA with the creation of the US Access Board. There are four agencies responsible for the built environment standards: the Department of Defense, the Department of Housing and Urban Development, the General Services Administration, and the US Postal Service. In 1984 these agencies jointly adopted the Uniform Federal Accessibility Standards (UFAS). In 2004 the Access Board authored updates to the standards, which three of the four agencies adopted. HUD is still tied to the original standards.

Section 504

No otherwise qualified handicapped individual in the United States shall, solely on the basis of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving federal financial assistance.

~Section 504, The Rehabilitation Act of 1973

Section 504, a fundamental part of the Rehabilitation Act of 1973, prohibited federally funded programs, agencies, and buildings from discriminating against disabled people. However, similar to the ABA, Section 504 needed an instrument of enforcement; otherwise it might as well not have existed. For example, the landmark 1954 decision Brown v. Board of Education, which ostensibly desegregated public schools in the United States, was completely ignored in many parts of the country where the law was not being enforced.

Section 504 of the federal Rehabilitation Act of 1973 drew language and inspiration from the Civil Rights Act of 1964 and extended similar anti-discrimination protections to people with disabilities. It was the first time that people with disabilities were recognized as members of a minority group who experienced unequal treatment under the law, rather than being considered mere unfortunates suffering from some medical condition.

~ Susan Stryker, The Nation

Due to energetic and creative direct actions by disabled people, the anti-discrimination policies in Section 504 were finally implemented. In 1977, a large group of more than 100 people with disabilities occupied the federal building in San Francisco, California for 26 days in order to demand the implementation and enforcement of Section 504. This was the longest sit-in protest at a federal building and a powerful story of activism that is very well documented in the 2020 documentary film Crip Camp: A Disability Revolution.

Section 508

In 1986 Section 508 was added as the 508th amendment to the Rehabilitation Act. This law requires agencies within the federal government to make sure that their Information and Communication Technology (ICT) is made accessible for people with disabilities. Examples of ICT include information obtained via computers, mobile phones, kiosks, electronic documents like PDFs, authoring tools, software and hardware, websites, and native mobile apps, among many more. This law doesn’t just affect the federal government, but the many private companies that do business with and for the federal government.

While this law was instituted in 1986, it was not given a mechanism for enforcement until 1998 when specific standards and guidance were instituted to support defined accessibility requirements. In 2016, almost 20 years after the original standards were initiated, Section 508 was again refreshed with guidelines to reflect new technology. The enforcement of this refresh began in January 2018 and represents the moment when the W3C’s Web Content Accessibility Guidelines (WCAG 2.0 — Levels A and AA), were directly applied to the aspects of Section 508 that is tied to the web.

The Capital Crawl

At the start of 1990, progress towards turning the Americans with Disabilities Act into law stalled in Congress. Disability rights activists worked incredibly hard to protest this unacceptable outcome. On March 12, 1990, dozens of disabled people who were participants in the “Wheelchairs of Justice” campaign, discarded their wheelchairs and other mobility aids and crawled up the Eastern steps of the US Capital. They did this to demonstrate how physically inaccessible the Capital building was for people with disabilities. This also gave credence to the understanding that the US government was generally inaccessible to people with disabilities.

Included below are a couple of videos to give you a greater understanding about the effectiveness of this direct action protest in making sure the ADA passed into law on July 26, 1990.

Video Credit: Capitol Crawl, Jennifer Keelan

Video Credit: Capitol Crawl, from Stephanie K Thomas

Title III and Digital Accessibility

The ADA specifically defines a person with a disability as someone who:

• has a physical or mental impairment that substantially limits one or more major life activities,
• has a history or record of such an impairment (such as cancer that is in remission), or
• is perceived by others as having such an impairment (such as a person who has scars from a severe burn).

The ADA is divided into five titles including: Employment (Title I), Public Services — State and Local Government (Title II), Public Accommodations (Title III), and Telecommunications (Title IV), and Miscellaneous (Title V). As you might surmise by the date of passage of the ADA (1990), websites and the internet weren’t particularly prominent in public affairs. Of course, the Web evolved rapidly and in 1996, the Department of Justice made public its decision that websites did indeed fall under the domain of Public Accommodations (Title III). You can download and read this public statement below:

• a letter between Deval L. Patrick, Assistant Attorney General, Civil Rights Division, Department of Justice, to Tom Harkin, U.S. Senator (Sept. 9, 1996)

So how do people with disabilities rely on the ADA for litigation efforts regarding barriers of exclusion created in digital products like websites and apps?

People with disabilities rely on the general principles of the ADA, because there are no defined digital standards in the law. The part of the ADA that used as a reference for digital accessibility complaints is the general principle of Title III , which argues that places of public accommodations ie private businesses must provide equal access to their goods and services for individuals with disabilities. Title III does not make specific reference to digital website accessibility or any of the standards guiding digital accessibility. In Deque’s GAAD 2021 Digital Accessibility Legal Update, presenter Kristina Launey cites three specific requirements under Title III:

1. Physical storefronts have to be accessible to people with disabilities.
2. make reasonable accommodations to policies practices and procedures to ensure individuals with disabilities have equal access to public accommodations’ goods, services, facilities, privileges, advantages and accommodations
3. ensure effective communication with individuals with disabilities by providing them auxiliary aids and services at no extra charge. There is mention of “accessible electronic information technology” and this is where websites and apps could fit.

Launey goes on to highlight the fact that there are a couple of big questions that remain ambiguous in how they are addressed by the ADA. First, what to do with entities that don’t fall under Title III’s categories of places of accommodation such as restaurants, hotels, retail store, movie theaters, private schools (including housing), doctors’ offices and hospitals, day care centers, gyms, or organizations offering courses or examinations? Second, what to do with entities that don’t have a physical place of business and are solely web based?

Because Title III is regulated by the US Department of Justice, its implementation and enforcement is vulnerable to the will of the sitting administration. For example, Obama’s Department of Justice (DOJ) chose to put pressure on places of public accommodation to make their websites and apps conform to WCAG 2.0 standards. Notable cases included edX, Carnival Cruises, Greyhound, H&R Block, and Florida State. In May 2016, the DOJ announced that it would issue a rule governing website accessibility standards for places of public accommodation to take effect in 2018.

However, the Trump DOJ withdrew the website accessibility rule-making efforts began in 2010. It also refused to weigh in on pending litigation in cases concerning website accessibility. As a result, we still have no clear regulations, statute, or official guidance on website accessibility for the public websites of private businesses.

The “Online Accessibility Act”

Currently, there is a new bill in Congress called the “Online Accessibility Act” which would add a new title, Title VI, to the ADA and that would be applicable to consumer-facing website and mobile applications. According to David Gibson at Accessibility Works, “The bill would remove the DOJ from rule-making related to the ADA, and put the US Access Board in charge of issuing standards and amend these standards to keep up with changing technologies.” However, disability activists oppose this bill as it is written, protesting a variety of issues including the fact that the Department of Justice would be overwhelmed with the task of enforcement and review of mobile apps and websites, while also being “required to investigate allegations and to file civil lawsuits against those deemed in violation of Title VI.”

Structured Negotiation and the ADA

The discussion concerning lawsuits and digital accessibility litigation can leave a negative impression about how the ADA is leveraged for people with disabilities. I want to emphasize that the primary purpose for disabled people to pursue litigation is to remove digital barriers to access regarding information and services. An alternative to filing a lawsuit is the structured negotiation method defined by disability rights lawyer Lainey Feingold in her book, Structured Negotiation: A Winning Alternative to Lawsuits, Second Edition. In the book Feingold states,

Structured Negotiation has its own framework premised on the idea that legal claims can be resolved equitably — and cost effectively — if stakeholders are able to form relationships and communicate openly with each other. It is a dispute resolution method built on the collaborative notion that if parties seek common ground, instead of digging their heels into legal arguments, solutions to even complex problems can emerge (Feingold, 30).

Basically, Structure Negotiation is a strategy to peacefully resolve digital accessibility concerns. Feingold also argues,

The process empowers advocates, giving them a place at the table and a voice in the conversation. It encourages corporate and government champions to do the right thing. And it offers lawyers a way to serve clients in a constructive, non-adversarial, more holistic manner (Feingold, 31).

Originally developed to address digital accessibility issues that faced the blind community, structured negotiation is an excellent approach that really highlights resolution as a means to support individual civil rights of disabled people. For example, at the recent M-Enabling Summit, I was seated next to a young woman who was blind. We struck up a conversation about her experiences with banking, and she expressed how frustrating it was to deal with inaccessible security kiosks that forced her to divulge private information such as pins and account numbers to sighted people so that she might access her financial information. I thanked her for sharing that frustration with me, as I hadn’t really fully considered what personal rights are lost in a single banking transaction.

As is always the case with everything we discuss pertaining to digital accessibility, this structured negotiation process is about truly helping tear down digital barriers that prevent people with disabilities from successfully navigating their lives.

Digital accessibility is really a civil right, because it’s about privacy, independence, and security. Because the digital world is designed for independent use. And if you have a barrier and a person with a disability has to ask for outside help, privacy is broken. Security is broken. Independence is broken.

~Lainey Feingold, 2021 Digital Accessibility Legal Update

I highly encourage checking out the resources below for more exploration about the impact of the ADA:

• 2 disability rights activists on the power of the ADA — and where it falls short
• Book Discussion on ‘Structured Negotiation: A Winning Alternative to Lawsuits’ by Lainey Feingold

Homework for Next Session — Rite Aid Settlement

The national pharmacy chain Rite Aid cam to a settlement with the Department of Justice, agreeing to make their Covid-19 vaccination registration portal accessible for people with disabilities. According to the DOJ, the portal created barriers for low vision users, keyboard only users, or screen reader users. Some of the issues sited include links that didn’t meet color contrast guidelines, a calendar picker that didn’t communicate available appointment times to screen readers, and a consent form that could not be completed by keyboard only users.

This case is really interesting in that it demonstrates just how important thorough testing is, particularly testing that includes people with disabilities. Rite Aid stated that it used a web accessibility consultant and automated testing tools to try and create an accessible product. These are definitely important actions, however, they do not include the full breadth of testing strategies needed to really ensure an accessible product. Had they incorporated manual testing, screen reader testing, and end to end testing, the issues cited would have been caught from the get go.

• Justice Department Secures Agreement with Rite Aid Corporation to Make Its Online COVID-19 Vaccine Registration Portal Accessible to Individuals with Disabilities
• Settlement Agreement between the United States and Rite Aid Corporation
• What the Department of Justice / Rite AID settlement agreement means to designers
• What the Department of Justice / Rite AID settlement agreement means to developers

The next article: Part II of our second session

In the next article we will discuss Ken’s other questions that we covered in session #2 including:

• How do screen readers use the accessibility tree?
• Do people with Dyslexia use screen readers?
• What is the difference between normative and non-normative as it relates to digital accessibility?