Through the American disability rights tradition, access to electronic and information technology has emerged as a civil right. As technology advanced, it was only a matter of time before a federal law would establish accessible design specifications for a broad class of electronic and information technology. Today, there are significant legal incentives for ensuring that Internet and intranet websites designed for U.S. entities meet accessible web requirements.
Ever since the passage of the 1964 Civil Rights Act prohibiting discrimination on the basis of race, legal protections for persons with disabilities have emerged and expanded through a patchwork of civil rights laws prohibiting discrimination on the basis of disability (for more, see The Accessible Future, National Council on Disability, June 21, 2001).
The Americans with Disabilities Act of 1990 (ADA), Section 255 of the Telecommunications Act of 1996, and Sections 504 and 508 of the Rehabilitation Act of 1973 form the basis for discussion in this chapter. These federal laws and accompanying regulations, interpretative guidance and case law, are only a few of many U.S. disability rights laws impacting technology and access to information. As such, this body of law is complex and cannot be fully addressed in a chapter on accessible web design. In fact, I do not believe it would necessarily be helpful for web design technologists to delve into this complexity.
This chapter introduces the current state of U.S. accessibility law as it pertains to the design of a website. All decision makers—whether they are web developers, their clients, or policy makers—need to understand the legal reasons for designing accessibly and the legal liability for ignoring the issue. This is especially important since ignorance of the law is not a defense. We will examine the ADA accessible web case, and briefly discuss Section 504 of the Rehabilitation Act and Section 255 of the Telecommunications Act. The meat of this chapter, however, concerns the U.S. legislation addressing accessible web design in Section 508—the Electronic and Information Technology Accessibility Standards. We will then take a look at how to decide when to apply the World Wide Web Consortium (W3C) Web Content Accessibility Guidelines (WCAG) as opposed to a Section 508 accessible web design rule. Finally, an in-depth chapter would not be complete without discussing current legal hot topics for accessible web design and challenges ahead.
As Lawrence Lessig commented in Code and Other Laws of Cyberspace (0-46503-912-X; Basic Books, 1999), "We can build, or architect, or code cyberspace to protect values that we believe are fundamental, or we can build, or architect, or code cyberspace to allow those values to disappear. There is no middle ground.
"
This chapter is an introduction to U.S. web accessibility law in depth. It is not intended to be a complete discussion of the complex legal issues involved, nor does it intend to be the final word regarding the changing regulatory and technological environment. Comments in this chapter should not be construed as legal advice or opinion on specific facts. Particular legal questions can best be answered by seeking the advice of legal counsel.
This year, the U.S celebrates the sixteenth anniversary of the passing of that landmark civil rights legislation, the Americans with Disabilities Act of 1990 (ADA). When former President Bush signed the ADA, it marked a watershed moment. Now persons with disabilities would have access to facilities, programs, services, and employment just like any other person.
One major goal of the ADA is to remove barriers in society, both physical and programmatic, to improve the quality of life of people with disabilities. This effort has created side benefits for those beyond the community of persons with disabilities, but that topic is reserved for another time. Many Americans are aware that one of the most significant impacts has been the establishment of a building code specifying the accessible elements for designing buildings, public pathways, and parking lots. Members of the construction industry, building code societies, and disability organizations came to the table to draft this important regulation after the ADA was enacted. At that time, many people did not understand why there were no persons with mobility disabilities in inaccessible buildings. They would say, "Why should we remove barriers in construction? I don'
t see anyone needing access!
" Similarly, many who do not understand the subject of this book have said the same about accessible web design.
Another significant impact of the ADA has been the use of technology in the workplace. Technology has enabled people with disabilities to demonstrate their ability to perform the essential functions of the job, leading many to become independent and self-reliant. This is done through the "reasonable accommodation
" process, along with the requirement that "effective communication
" and "auxiliary aids and services
" be provided. These ADA concepts will be discussed later in this chapter when we look at ADA web cases.
The ADA is a complex law, and so this chapter only touches the surface of important issues. For more information, visit the U.S. Department of Justice ADA homepage.
The granddaddy of the ADA is the Rehabilitation Act of 1973, which established the fundamental civil rights protections for individuals with disabilities. Today, entities subject to Section 504 of the Rehabilitation Act—such as government entities, schools, colleges, and universities receiving federal financial assistance—are prohibited from discrimination on the basis of disability in public and private programs and activities. In 1973, Congress determined that the penalty for discrimination on the basis of disability would be the revocation of federal funding.
In 1990, Congress expanded civil rights protections by enacting the ADA and extended civil rights protections beyond entities receiving federal financial assistance. For the first time, the private sector, including commercial businesses, became subject to prohibitions against discrimination on the basis of disability. The ADA is a landmark civil rights law that impacts employment, state and local government, and the private commercial sector.
Eight different federal agencies are responsible for enforcing the ADA, and this responsibility is assigned according to the function of each agency. The U.S. Department of Education, Office for Civil Rights (OCR), is the enforcer of educational entities subject to Section 504 and has required educational institutions to develop and maintain accessible websites. The U.S. Department of Justice (USDOJ) requires State and local governments subject to Section 504 and the ADA to implement accessible websites as part of its Project Civic Access effort.
Perhaps this is a good time to point out four myths found their way into ADA legal literature:
The first myth that accessible web requires expensive streaming audio and high bandwidth comes from not understanding how a screen reader or voice browser operates when viewing web pages. I have observed legal arguments against accessible web design built upon this myth—all the way from Congressional law and policy memoranda to law review articles! To the contrary, accessible web not only enables people with disabilities to have access, it also means that people with slow modems can turn off images and quickly reach web content. This fact has been a very important cost-savings issue for Internet users in developing countries.
As to the second myth, in certain cases there may be the need to show two versions of website content, but technology has now brought us to the point that we have the knowledge and the means to design accessibly without segregation and without driving up the cost for implementation and maintenance. In my opinion, having two versions of a website is not a best practice. We have markup solutions to enable someone using a text browser, such as Lynx, to reach the content of a graphical web page. In fact, the W3C Web Accessibility Initiative (WAI) FAQ states that having two versions is counterproductive and not necessary (see www.w3.org/1999/05/WCAG-REC-fact#text).
The third myth—that accessible web is required only if you are an entity that receives federal funding—is also incorrect. This is true because liability under the ADA does not require the covered entity to be a recipient of federal financial assistance. In some cases, however, the issue may be moot because some entities are covered under both the ADA and Section 504. For example, a government entity or a school district, college, or university that accepts federal funding, such as federal financial assistance for its students, can be found liable for discrimination under Section 504 of the Rehabilitation Act of 1973 if its website is not accessible. Under Section 504, all programs at a school or college are covered, and this means that participants in the program—including parents, students, and employees—are protected from discrimination.
The fourth myth—that web developers cannot be held liable for inaccessible web design due to client instructions and pocketbook limitations—is not true. Under the ADA, architects of buildings subject to new construction or remodeling have been held liable for failure to design and construct accessible facilities, although courts have not been consistent in their findings. In fact, the USDOJ has consistently maintained that architects can be held liable for violating the ADA. For more information, see Legal Rights of Persons with Disabilities: An Analysis of Federal Law, by Bonnie Poitras Tucker and Bruce A. Goldstein (0-93475-346-6; LRP Publications, 1991).
Similarly, it is now highly likely that web developers could also be held liable, both for the construction of a website and any time they modify it. This is because the ADA imposes an ongoing duty to remove barriers, maintain accessible features, and provide effective communication in a timely manner.
Even though the ADA requires the removal of barriers to programs, services, and facilities, it provides no technical guidance on how to design accessible websites. Now that Section 508 Electronic and Information Technology Accessibility Standards is law, the ADA is informed about what it means to design accessible websites. In fact, the 2003 ADA guidance provided by the USDOJ for state and local government websites points to Section 508. And to make matters further complicated (or easier, depending on your point of view), all states now have a policy, statute, or set of guidelines related to accessible web design. So, even though Section 508 directly impacts federal agencies, there is also an indirect impact on nonfederal entities for a variety of reasons. For some guidance through this maze, see the "When Does a Web Developer Follow Section 508 Rules?" section later in this chapter.
Prior to Section 508 being enacted, the only legal guidance on accessible web was the 1996 USDOJ policy ruling that the ADA applied to the Internet. This is why it was so significant that I implemented the first accessible web design standard for local government in 1995, as discussed in Chapter 2. ADA website complaints were being filed, people with disabilities needed access, and there was no standard to follow. This early web standard contributed to the eventual passage of Section 508. As noted by The National Council on Disability (an independent federal agency that monitors the implementation, effectiveness, and impact of the ADA and advises the President and Congress), "These [Waddell] standards were important for two reasons: first, because they constituted an acknowledgment of the legitimacy of claims by people with disabilities for access to the web; and second, because they demonstrated that objective and workable criteria for vindicating these rights could be devised
" (see When the ADA Goes Online: Application of the ADA to the Internet and the Worldwide Web, National Council on Disability).
Now that the Section 508 Electronic and Information Technology Accessibility Standards have become law, these standards inform ADA entities on how to create accessible websites and services, including the help desk and all product documents. As a result, web developers may be liable, as discussed later in this chapter in the "Section 508 Overview" section.
I attribute these myths to lawyers not understanding technology and what it means to design accessibly. But we should not discount the possibility that these lawyers consulted the technical community, or that these erroneous views may have originated from the technical community. So watch out for variations of these myths!
Under the ADA, covered entities are required to furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities, unless doing so would result in a fundamental alteration to the program or service, or an undue burden. Auxiliary aids include taped texts, Brailled materials, large-print materials, captioning, and other methods of making audio and visual media available to people with disabilities.
On September 9, 1996, the USDOJ issued a policy ruling applying the ADA to the Internet. Under the rationale of "effective communication
," the USDOJ states that state and local governments (ADA Title II), as well as public accommodations (nongovernmental) and commercial facilities (ADA Title III), must provide effective communication whenever they communicate through the Internet.
"Public accommodations
" include private entities that offer goods and services to the public, such as the following:
The policy ruling stated that:
Covered entities under the ADA are required to provide effective communication, regardless of whether they generally communicate through print media, audio media, or computerized media such as the Internet. Covered entities that use the Internet for communications regarding their programs, goods, or services must be prepared to offer those communications through accessible means as well.
The USDOJ continued in the policy ruling by discussing a variety of ways to provide accessibility. These included a text-only page or the provision of accessible instructions on the web page, so that a person with a disability could request the same web information in an accessible format such as Braille, large print, diskette, or audiotape.
Prior to the prevalent use of the Internet, entities met ADA requirements by providing accessible information in alternative formats such as those suggested by the USDOJ. My office quickly experienced a cost saving of staff time and alternative format expenses when we began to provide accessible information through the Internet.
In addition, the definition of "effective communication
" was eventually further refined to be a three-pronged definition including "timeliness of delivery
." It would no longer be an option to design an inaccessible website and post instructions on how to request the same web content in an accessible format. Stay tuned for the California Community College case, as discussed in the "OCR Letter of Resolution, Docket No. 09-97-6001" section later in this chapter.
It is interesting to note that the policy ruling came as a result of a letter initiated by a web designer who also was a lawyer. He was knowledgeable about the ADA, the prohibition against discrimination against persons with disabilities, and wanted "to do the right thing." He wrote to his senator, who then made an inquiry to the USDOJ. The policy ruling was in response to the inquiry by Senator Harkin on behalf of this web designer. So web designers can make a difference! (See the United States Department of Justice Policy Ruling, 9/9/96: ADA Accessibility Requirements Apply to Internet Web Pages at 10 NDLR 240 or at www.usdoj.gov/crt/foia/tal712.txt, for more on the inquiry from a web designer.)
The policy ruling includes a list of resources on how to design accessible web pages. Visitors to the Center for Information Technology Accommodation of the U.S. General Services Administration were pointed to resources, including my accessible web design standard at the City of San José, California.
In 2003, the USDOJ issued guidance on accessible websites for state and local governments and cited the legal obligations under the ADA and the Rehabilitation Act. Helpful guidance is found in this document, including the following Action Plan for Accessible Websites:
- Establish a policy that your web pages will be accessible and create a process for implementation.
- Ensure that all new and modified web pages and content are accessible:
- Check the HTML1 of all new web pages. Make sure that accessible elements are used, including alt tags, long descriptions, and captions, as needed.
- If images are used, including photos, graphics, scanned images, or image maps, make sure to include alt tags and/or long descriptions for each.
- If you use online forms and tables, make those elements accessible.
- When posting documents on the website, always provide them in HTML or a text-based format (even if you are also providing them in another format, such as Portable Document Format (PDF)).
- Develop a plan for making your existing web content more accessible. Describe your plan on an accessible web page. Encourage input on improvements, including which pages should be given high priority for change. Let citizens know about the standards or guidelines that are being used. Consider making the more popular web pages a priority.
- Ensure that in-house staff and contractors responsible for web page and content development are properly trained.
- Provide a way for visitors to request accessible information or services by posting a telephone number or E-mail address on your home page. Establish procedures to assure a quick response to users with disabilities who are trying to obtain information or services in this way.
- Periodically enlist disability groups to test your pages for ease of use; use this information to increase accessibility.
1. Web pages are written using a language called HTML (or "hypertext markup language"). HTML is a "markup language" that tells a computer program (called a "browser") how information will appear or will be arranged on a computer screen. HTML tags are specific instructions understood by a web browser or screen reader.
In the U.S., disability rights cases are complaint-driven and are either administrative or filed in court. If an entity refuses to remediate the website upon inquiry from a person with a disability, then a complaint must be filed in order to remedy the problem. Also, under the ADA, a person with a disability need not hold American citizenship to file the complaint.
At times, the USDOJ will initiate a lawsuit, but only after it has first unsuccessfully attempted to settle the dispute through negotiations. However, the USDOJ may file lawsuits to enforce the ADA and may obtain court orders including compensatory damages and back pay to remedy discrimination. Under Title III (applicable to public accommodations and commercial facilities), the USDOJ may also obtain civil penalties of up to $55,000 for the first violation and $110,000 for any subsequent violation.
Another way an ADA federal enforcement agency might become involved would be to initiate a compliance review that included the correction of a website deficiency. You will see an example of this activity when we look at the California Community College case, in the "OCR Letter of Resolution, Docket No. 09-97-6001" section later in this chapter.
Members of the legal profession may not necessarily be knowledgeable about civil rights and accessible web liability, since disability rights law is not a bar exam requirement. Because of my concern for educating the business and legal community about inaccessible technologies and their impact, I have authored a number of papers and articles currently posted at www.icdri.org/CynthiaW/cynthia_waddell.htm. One such paper, "Applying the ADA to the Internet: A Web Accessibility Standard", was requested by the American Bar Association in 1998 because of the need for education. This paper has been frequently cited in legal literature, as well as in reports to the U.S. President and Congress, such as in The Accessible Future.
Since at least 1995, many ADA web cases have been filed, and the results have been mixed. In addition, many parties have entered into settlement agreements. Some of these agreements are available to the public; others are private and confidential. Here, we will look at some of the more recent public cases.
In November 2001, six plaintiffs, including Fulton County Magistrate Judge Stephanie Davis, filed a class action in federal court against the Metropolitan Atlanta Rapid Transit Authority (MARTA). Three plaintiffs were blind, one had cerebral palsy and required a wheelchair for mobility, and two plaintiffs were quadriplegics who required wheelchairs for mobility.
The complaint contained a long list of ADA violations, including the problem that the agency failed to make information available to people with disabilities through accessible formats and technology. For example, MARTA' s web developer testified by affidavit that the website at www.itsmarta.com provided the general public with extensive information on the routes and schedules for its fixed-route services. However, it was not formatted in such a way to make it accessible to blind persons who use screen reader software. Plaintiffs sought injunctive and declaratory relief under the ADA and Section 504 of the Rehabilitation Act of 1973.
On the issue of accessible web, the federal district court in Georgia held in favor for the plaintiffs, finding that the website was not accessible and violated the ADA. This was the first ADA Title II case for state and local government directly on point concerning the issue of whether or not the ADA applied to websites. You can read the decision at www.gand.uscourts.gov/documents/1001cv3255TWTinj.pdf.
Shortly after the Martin v. Metropolitan Atlanta Transportation Authority decision was issued, another district court in Florida dismissed a lawsuit brought against Southwest Airlines for the inaccessibility of the website at www.southwest.com, on the grounds that the website was not a place of public accommodation under Title III of the ADA. See the court order, published in October 2002.
One of the difficult issues before this court was the fact that airlines such as Southwest are generally not covered under the ADA, but by another disability access statute, the pre-ADA Air Carrier Access Act. Another problem with this case was that the judge did not have the correct facts regarding standards for accessible web design. The judge concluded that the W3C WCAG were not a generally accepted authority on accessibility. In Footnote 1 of the District Court opinion, the judge wrote (emphasis added):
Although it appears that no well-defined, generally accepted standards exist for programming assistive software and websites so as to make them uniformly compatible, Plaintiffs provided the Court with a copy of the Web Content Accessibility Guidelines 1.Q, W3C Recommendation 5-May-1999, produced by the Web Accessability[sic] Initiative See Web Content Accessibility Guidelines 1.0, at http://www.w3.org/TR/WCAG 10/ (Last visited Oct, 16, 2002). While "
these guidelines explain how to make Web content accessible to people with disabilities," the guidelines further note that they do "not provide specific information about browser support for different technologies as that information changes rapidly." Id. Moreover, not only are these guidelines over three-years old, but there is no indication that the Web Accessibility Initiative, which "pursues accessibility of the Web through five primary areas of work: technology, guidelines, tools, education and outreach, and research and development," is a generally accepted authority on accessibility guidelines. See About WAI, Last visited Oct. 16, 2002)
Upon appeal, the U.S. Court of Appeals did not reach the issue of whether or not ADA Title III entities providing online services needed to be accessible. The court simply dismissed the case due to procedural issues. This case has generated a number of misleading articles in the U.S. and abroad, which said that the court upheld the lower court ruling. Contrary to what was reported, the court did not rule on the merits of the case and did not uphold the lower court ruling.
However, even though the U.S. Court of Appeals declined to evaluate the merits of the Southwest Airlines case, the court found that the legal questions are significant. The court stated that, "The Internet is transforming our economy and culture, and the question whether it is covered by the ADA—one of the landmark civil rights laws in this country—is of substantial importance
" (see http://caselaw.lp.findlaw.com/data2/circs/11th/0216163p.pdf).
Because the judge wrote that the WAI was not a generally accepted authority on accessibility guidelines, you may be interested in reading the response of the W3C when the case was appealed. Two Amicus (or Friend of the Court) briefs were filed in support of the appeal in March 2003: the W3C Amicus Brief and the Disability Community Amicus Brief.
The issue as to whether airlines must have accessible websites may be moot given that the U.S. Department of Transportation has initiated rulemaking on this issue. See the "U.S. Department of Transportation Notice of Proposed Rulemaking" section later in this chapter for further discussion.
For an interesting read about accessible web and playing online bridge, see this USDOJ appellate brief outlining the ADA enforcement agency position. On June 30, 2000, the USDOJ filed a friend of the court appellate brief in Hooks v. OKBridge arguing that ADA Title III applied to the Internet. See Hooks v. OKBridge, Inc. 99-50891 (5th Cir.2000); also see the USDOJ Amicus Curiae brief.
OKBridge is a commercial website where customers can play bridge and participate in online discussion groups regarding the game for a fee. The USDOJ argues that a commercial business providing services over the Internet is subject to the ADA' s prohibition against discrimination on the basis of disability because:
A. The Language Of The ADA Does Not Limit It To Services Provided At A Company' s Physical Facility
1. The Services "Of" A Place Of Public Accommodation Need Not Be Provided "At" The Place Of Public Accommodation
2. The Definition Of "Public Accommodation" Is Not Limited To Entities Providing Services At Their Physical Premises
3. The Absence Of Specific Mention In The ADA Of Services Provided Over The Internet Does Not Restrict The ADA' s Coverage
B. This Court Has Already Rejected The View That The ADA Is Limited To Services Performed At A Physical Place
www.usdoj.gov/crt/briefs/hooks.htm
The USDOJ points out that a growing number of services are being provided over the Internet, creating modes of commerce that are replacing physical buildings. In addition, many businesses provide services at places other than their premises, and they are not relieved from the prohibition from discriminating on the basis of disability; for example, services provided over the telephone or through the mail, such as travel agencies, banks, insurance companies, catalog merchants, and pharmacies. The USDOJ also points out that many other businesses provide services in the homes or offices of their customers, such as plumbers, pizza delivery, moving companies, cleaning services, business consulting firms, and auditors from accounting firms.
In short, it is the USDOJ' s position that the entertainment or recreation services provided by OKBridge make it a place of public accommodation. However, the Fifth Circuit Court ruling in this case did not reach the question of whether or not the ADA applied to the Internet.
As for whether or not the ADA applies to private websites—and not government websites like the Martin case—the courts are currently split on this issue. The First and Seventh Circuit Courts have suggested that websites can be considered public accommodations and thus subject to the ADA. On the other hand, the Sixth, Third, and Ninth Circuit Courts have held otherwise and require a physical place.
The problem is that current case law finds courts disagreeing as to whether or not the ADA definition of "place of public accommodation
" is limited to actual physical structures. In Carparts Distribution Center v. Automotive Wholesalers Association of New England, the First Circuit Court held that places of public accommodation are not limited to physical facilities—see 37 F.3d 12 (lst Cir. 1994). The court based its conclusion on legislative history and the purpose of the ADA and stated:
It would be irrational to conclude that persons who enter an office to purchase services are protected by the ADA, but persons who purchase the same services over the telephone or by mail are not. Congress could not have intended such an absurd result.
www.harp.org/carparts.txt (p. 19 of the decision)
Similarly, the Seventh Circuit Court in Doe v. Mutual of Omaha Insurance Company stated in its discussion that websites are a place of public accommodation. In Doe, the court said:
The core meaning of this provision, plainly enough, is that the owner or operator of a store, hotel, restaurant, dentist' s office, travel agency, theater, 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 non-disabled do.
http://lw.bna.com/lw/19990615/984112.htm, cited as 179 F.3d 557 (7th Cir. 1999)(emphasis added and citations omitted)
On the other hand, the Third, Sixth, and Ninth Circuit Courts have held that the ADA does not cover services outside a physical location. See Ford v. Schering-Plough Corporation, 145 F.3d 601, 614 (3d Cir. 1998); Parker v. Metropolitan Life Insurance Company, 121 F. 3d 1006 (6th Cir. 1997), and Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104 (9th Cir. 2000).
Many ADA accessible web complaints have been filed, both administratively and in court, and many have been settled. Some of the settlements are private, but some are public. Let' s take a look at the public settlements, mediations, and legal compliance reviews underway, in chronological order.
Each year, the OCR receives approximately 5,000 complaints claiming discrimination on the basis of race, color, national origin, sex, disability, and age. These complaints involve some of the most important issues affecting equal access to good-quality education. For example, the disability discrimination issues range from accessibility of school facilities and programs to auxiliary aids and accessible web design.
Access to the learning environment is a critical, front-line issue requiring immediate resolution. Library reference services are being transformed by the application of Internet access to information systems and search engines. Professors are teaching long-distance learning courses over the Internet, and even if a student is physically in class, homework assignments and resources are being posted on classroom web pages. Yet, even if a library terminal has assistive computer technology installed for students or visitors with disabilities, Internet research is not possible with inaccessible web page design.
The following is a summary of four California OCR, U.S. Department of Education Letters of Resolution, which impact Internet accessibility.
This case concerned a student complaint that a university failed to provide equivalent access to the Internet. A student with a visual disability was required to make appointments with personal reader attendants as the exclusive mechanism for access to the Internet. The University also failed to complete the "Self-Evaluation Plan" as required by ADA Title II. According to the finding:
The issue is not whether the student with the disability is merely provided with access, but rather the extent to which the communication is actually as effective as that provided to others. Title II of the ADA also strongly affirms the important role that computer technology is expected to play as an auxiliary aid by which communication is made effective for persons with disabilities. OCR notes that the "information superhighway" is fast becoming a fundamental tool in post-secondary research.
Letter of Resolution, pp. 1-2; 38 C.F.R.§35.160(a)
This case concerned a student complaint that a university failed to provide access to library resources, campus publications, open computer laboratories, training on adaptive computer technology, and computer test-taking (see www.icdri.org/legal/csula.htm). According to the finding:
Title II of the Americans with Disabilities Act (Title II) requires a public college to take appropriate steps to ensure that communications with persons with disabilities "
are as effective as communications with others" [28 C.F.R. § 35.160(a)]. OCR has repeatedly held that the term "communication" in this context means the transfer of information, including (but not limited to) the verbal presentation of a lecturer, the printed text of a book, and the resources of the Internet. Title II further states that, in determining what type of auxiliary aid and service is necessary, a public college shall give primary consideration to the requests of the individual with a disability [28 C.F.R. § 35.160(b)(2)].
In further clarifying what is meant by "effective communication
," OCR held that the three basic components of effective communication are, "timeliness of delivery, accuracy of the translation, and provision in a manner and medium appropriate to the significance of the message and the abilities of the individual with the disability
" (Letter of Resolution, p. 1).
The first prong of the definition, "timeliness of delivery
," strengthened the legal requirement for accessible web design. Previous practices of posting information on the website to tell people with disabilities that they could get the web content in an accessible format by phoning or e-mailing a request no longer met the ADA definition of "effective communication
." While one person could access the content of a website within seconds, another, with a different disability, might need to make a phone call and have the content snail-mailed to him in an accessible format. The "timeliness of delivery
" prong of the definition was now going to play an important role in the civil right to information.
We also see the emergence of policy that later became law in Section 508: an accessible technology plan. In this Letter of Resolution, OCR points out that the courts have held that a public entity violates its obligations under the ADA when it responds on only an ad-hoc basis to individual requests for accommodation. There is an affirmative duty to develop a comprehensive policy in advance of any request for auxiliary aids or services—see Tyler v. City of Manhattan, 857 F. Supp. 800 (D.Kan. 1994). Moreover, according to OCR, "[a] recognized good practice in establishing such a comprehensive policy is to consult with the disability community, especially those members most likely to request accommodations
" (Letter of Resolution, p. 2).
The bottom line, according to OCR, is that effective communication imposes a duty to solve barriers to information access that the entity' s purchasing choices create. Whenever existing technology is "upgraded" by a new technology feature, it is important to ensure that the new technology either improves accessibility or is compatible with existing assistive computer technology. Web-authoring software programs that erect barriers in their coding of web pages fall under this scrutiny.
Lastly, OCR states that when an entity selects software programs and/or hardware equipment that is not adaptable for people with disabilities, "the subsequent substantial expense of providing access is not generally regarded as an undue burden when such cost could have been significantly reduced by considering the issue of accessibility at the time of the initial selection
" (Letter of Resolution, p. 2).
When applied to accessible web design, there is all the more reason to ensure that the initial design and any subsequent "updates" meet with accessibility requirements. If the problem of accessibility is not addressed at this stage, then the money to address the burden of expense afterwards may not be available. Therefore, all technology improvements must take into account the removal of existing barriers to access and ensure that new ones do not occur. Covered entities preparing to retrofit their websites need to be aware of this requirement.
Because OCR recognizes that not all illegal discrimination situations can be addressed by relying on complaints filed from the public, OCR conducts agency-initiated cases, or compliance reviews. According to OCR, these compliance reviews "permit OCR to target resources on compliance problems that appear particularly acute, or national in scope, or which are newly emerging
" (see www.ed.gov/about/offices/list/ocr/AnnRpt99/edlite-how.html).
In March 1996, the OCR notified the California Community Colleges that it was about to begin a statewide compliance review under Title II of the ADA. The purpose of the review and subsequent OCR Report was to assess how 106 California Community Colleges meet their obligations to students with visual disabilities in providing access to print and electronic information. In OCR' s letter dated January 22, 1998, the comprehensive review suggested nine strategies to address:
The Community College Chancellor agreed to implement OCR' s recommendations to help the colleges meet their obligations under the ADA and Section 504 of the Rehabilitation Act (see March 9, 1999. Letter from Ralph Black, General Counsel for the California Community Colleges, to Paul Grossman, Chief Regional Attorney, U.S. Department of Education, OCR re: Case Docket No. 09-07-6001).
Whereas the assistive computer technology training, support, and services for students with disabilities were once limited to staff exclusively working with the Office of Disabled Student Programs, a systematic plan is now required for mainstreaming this knowledge campus-wide: "Technology access, like architectural access, must be addressed institutionally as an integral part of the planning process
" (Letter of Resolution, p. 5).
Just as the removal of architectural barriers requires a plan for implementation, the removal of technological or digital barriers in programs and services requires a comprehensive institutional plan impacting every campus office. You will again see this concept of a plan for accessible technology in the discussion of Section 508 later in this chapter.
Today, a standard for long-distance learning has been established by the California Community Colleges as a direct result of this compliance activity. The 1999 "Distance Education: Access Guidelines for Students with Disabilities" are considered a model for the nation.
This was a student complaint that the university failed to provide access to the College of Business curriculum and other educational programs, including computer laboratories and classes in the College of Business (see www.icdri.org/legal/lbeach.htm). OCR noted that, although the academic community has heavily relied upon centralized units on campus to house and maintain assistive computer technology:
[S]uch sole reliance upon a single centralized location (when not limited to adaptive technology training, but instead used for instructing disabled students in course subject matter) may run counter to the strong philosophy embodied in [ADA] Title II and Section 504 regarding the importance of fully integrating students with disabilities into the mainstream educational program, unless such services cannot be otherwise effectively provided [see 34 C.F.R. § 104.4(b)(iv); 28 C.F.R. § 35.130(b)(iv).] Thus, OCR assumes that in most cases computer access will be effectively provided to the student with the disability in an educational setting with his or her non-disabled peers and classmates at the various computer laboratory sites scattered throughout the campus.
OCR went on to point out that by April 1, 1999, the University provided OCR with a voluntary resolution plan, which resolved the issues raised in this case. The plan included the following commitments by the University:
As a result, the mainstreaming of students with disabilities created the need for appropriate technology tools for access to the learning environment. And as students with disabilities move into the workforce as employees, employers, and consumers, accessible web design, accessible web-authoring tools, and an accessible Internet platform remain significant issues to be addressed. In other words, overcoming barriers in web design requires appropriate policies, technology tools, and education for accessible design and implementation.
In November 1999, the National Federation of the Blind (NFB) filed a suit against America Online, Inc. (AOL), charging that AOL' s proprietary browser and Internet website was inaccessible to consumers who were blind. According to the complaint, screen readers were encountering accessibility barriers to AOL services due to the use of unlabeled graphics, keyboard commands that had to be activated through a mouse, customized graphical controls, and channels hidden within unlabeled graphics. Some of the web design barriers included the following:
effective communication," where the user could not benefit from a significant number of AOL service features
According to the complaint, service features that the user could not use included the following:
On July 26, 2000, NFB and AOL announced that the first ADA Internet complaint against an Internet service provider had been dismissed by mutual agreement. It was no accident that the joint press release was released on the tenth anniversary of the ADA. As I reviewed the Agreement, I found that although the complaint was dismissed without prejudice, NFB expressly reserved its rights to renew their ADA action against AOL. This means that the Agreement should not be regarded as a settlement.
However, the Agreement set forth a number of remedies to assist AOL in addressing accessibility. For example, AOL committed to an Online Accessibility Policy, now found on the AOL website. AOL' s Online Accessibility Policy has three components:
I have further discussed this case in several articles. These include "Suit Targets Cyberspace for ADA Compliance," National Disability Law Reporter, Highlights, Volume 16, Issue 5, December 16, 1999; "The National Federation of the Blind Sues AOL," Human Rights, Volume 27, No. 1, Winter 2000, American Bar Association Magazine for the Section of Individual Rights and Responsibilities; and "Will the National Federation of the Blind Renew Their ADA Web Complaint Against AOL?", National Disability Law Reporter, Volume 18, Issue 5, August 24, 2000.
If you have ever wondered why a bank ATM has Braille labels on LCD displays, you are not alone. Although the ADA Accessibility Guidelines requires this "accessibility feature
," few members of the blind and low-vision community can benefit from this feature, since it does not tell them what content the window displays.
In response to this problem, disability advocates and consumers, led by Attorney Lainey Feingold, are spearheading structured negotiations to persuade major banking institutions not only to install talking ATM machines for people with visual disabilities, but also to set up accessible bank websites. To date, institutions such as Bank of America, Fleet, Washington Mutual, First Union/Wachovia, Bank One, Citizens Bank, and Sovereign Bank have entered into agreements that include commitments for accessible online banking.
As early as March 2000, a settlement was reached between the California Council of the Blind and Bank of America. Bank of America not only agreed to install more than 2,500 talking ATMs in Florida and California, but also to design their websites to be in conformance with Priority 1 and 2 levels of the W3C WCAG 1.0.
This was the beginning of a series of talking ATM settlements that has continued today. A February 28, 2001, press release announced an agreement by Fleet National Bank to install talking ATMs and ensure accessible online banking services. According to the agreement, Fleet was to use its best efforts to design its web pages to comply with Priority 1 of the W3C WCAG 1.0 by June 1, 2001, and to eventually comply with Priority 2 of the WCAG by December 31, 2001. For more agreements to date involving Sovereign Bank and Citizens Bank, see www.dlc-ma.org/News/atm/index.htm.
These agreements contain various enforcement mechanisms to keep disability advocates and attorneys apprised of the banks' progress toward meeting the settlement requirements. Take a look at some of the clauses from the June 2003 Bank One settlement. It includes web accessibility provisions requiring conformance with WCAG 1.0, third-party content, and the publication of web accessibility information on the bank website for customers:
6. Web Accessibility.
6.1 Priority 1. Bank One will use its good faith efforts to design and generate each page of www.bankone.com, online.bankone.com, cardmemberservices.firstusa.com, onlinefirstusa.com and www.firstusa.com so that each substantially complies with Priority 1 of the Web Content Accessibility Guidelines found at www.w3c.org.TR/WCAG10 (hereinafter "Guidelines"), by June 30, 2003.
6.2 Priority 2. Bank One will use its good faith efforts to design and generate each page of www.bankone.com, online.bankone.com, cardmemberservices.firstusa.com, onlinefirstusa.com and www.firstusa.com so that each substantially complies with Priority 2 of the Guidelines by December 31, 2003.
6.3 Reports. Bank One will, during the term of this Agreement, report to Claimants on a semi-annual basis beginning June 30, 2003, regarding the progress made toward compliance with Sections 6.1 and 6.2. Claimants may submit to Bank One, within thirty (30) days of receipt of each such report, written questions regarding the report, and Bank One will, within thirty (30) days of receipt of such questions, provide answers to Claimants.
6.4 Information to the Public Regarding Web Accessibility. No later than September 30, 2003, Bank One will add one or more pages to www.bankone.com and www.firstusa.com describing the Bank' s efforts to make the Bank One websites accessible to Persons with Vision Impairments or Blindness. The page(s) will include information as to how users can contact Bank One and/or Bank One, Delaware, NA concerning website accessibility issues.
6.5 Third Party Content on Bank One Websites. Bank One will use good faith efforts to include web accessibility as one of its criteria in relevant requests for proposals and other procurement documents involving third party content, which is web pages that are directly linked to pages of www.bankone.com, online.bankone.com, cardmemberservices.firstusa.com, and www.firstusa.com within sixty (60) days of the Effective Date.
6.6 Limitation of Remedies. A breach of this Section 6 shall occur only where Claimants can establish that Bank One has engaged in a pattern or practice of non-compliance with Section 6. The Parties agree that if a web site contains Accessibility Errors from time to time that are inconsistent with the Priority levels described in this Section 6, or other access problems from time to time, such occurrences will not necessarily constitute a breach of this Agreement. However, the Parties recognize that repeated Accessibility Errors of the same or similar type may be evidence of a pattern or practice of non-compliance. Furthermore, Claimants will not assert a breach of Section 6 unless a mutually agreed upon web consultant, hired by Bank One, has determined that the challenged web page or portion thereof, does not substantially comply with the applicable Priority 1 or 2 Guidelines. No breach of contract claims related to Bank One' s obligations under Section 6 of this Agreement may be maintained by persons who are not Parties to this Agreement.
In March 2000, the Arizona Democrat Presidential Primary was conducted online for the first time. Members of the blind community went to the polls expecting to vote for the first time independently and in private, but found that the website ballot was not accessible to screen readers.
A now-defunct website posted information about this incident, and so I interviewed a number of the complainants in order to understand the scope of the voting accessibility problem. In fact, I had predicted this very outcome the previous year in a paper commissioned by the U.S. Department of Commerce and the National Science Foundation for the first national conference on the impact of the digital economy. I had noted that Fortune 500 companies were already using the Internet as an option for shareholder participation in annual or special business meetings and appeared to be unaware of the accessibility problems of their website ballots. I had pointed out that this problem should be a reminder for governments that Internet voting for local, state, or national elections requires accessible web design to prevent the disfranchisement of people with disabilities. (See The Growing Digital Divide in Access for People with Disabilities: Overcoming Barriers to Participation, by Cynthia D. Waddell.)
www.election.com had provided the Internet voting website for the Arizona Democrat Presidential Primary. In response to the complaints, top-level www.election.com officials issued a press release in April 2000 stating that they would "take definite steps toward greater accessibility for blind voters
" (previously posted at www.election.com/us/pressroom/pr2000/0419.htm but as of December 2005, www.election.com no longer maintains a website).
The following year, a U.S. government federal agency, the U.S. General Accounting Office, issued a report in October 2001 entitled Voters with Disabilities: Access to Polling Places and Alternative Voting Methods, GAO-02-107. This report pointed out that one advantage for Internet voting was that voters who are blind could vote independently when the web ballot is designed according to Section 508 standards (see www.gao.gov/new.items/d02107.pdf).
April 2000 also brought an announcement by the Connecticut Attorney General' s Office and the NFB that four online tax filing companies had agreed to make their Internet sites accessible to the blind. Four companies—HDVest, Intuit, H & R Block, and Gilman & Ciocia—agreed to implement changes to conform to the W3C WCAG by the 2000 tax-filing season. The popular online tax-filing services had been listed on the Internal Revenue Service' s official website as online partners.
In the USDOJ April–June 2001 report, Enforcing the ADA-Update, it was reported that a successful ADA mediation was concluded between a credit card company and a blind person from Colorado (www.usdoj.gov/crt/ada/aprjun01.htm). The credit card company agreed to change its practice when a customer who was blind complained that the large-print credit card statement routinely provided by the company was too small to read. The credit card company agreed to maintain an accessible website and worked with the complainant so he could access the website to enlarge and print his monthly statements in a format usable by him. The credit card company also paid the complainant' s attorney' s fees.
Suffice it to say that the Internet has made transactions so transparent that it is now very obvious to the community of people with disabilities when they cannot access the content of a website due to inaccessible design. In my opinion, the emergence of Section 508 Electronic and Information Technology Accessibility Standards was a logical step in an evolution of disability rights. It seeks to level the playing field in access to the powerful tools that information and technology have become in our global economy.
In May 2004, USDOJ announced that a federal court in Las Vegas, Nevada, had issued permanent injunctions against Oryan Management and Financial Services, ADA Adventure and four individuals, barring them from marketing bogus accessible websites. According to the complaint, the defendants marketed bogus websites with links to particular products and merchants. Each purchaser was offered a separate website virtual mall business, which could be "modified" in order to comply with the ADA.
In reality, each "business" was merely an account on one website. The "business" required no payment up front. Instead, each purchaser agreed to provide the website designers with a stated percentage of the commissions earned from the website. The cost for the accessible web modification was $10,475 ($2,495 cash, plus a $7,980 promissory note). This scheme was said to entitle the purchaser to claim a $5,000 Disabled Access Credit and a $5,475 business-related deduction.
The USDOJ estimated that the abusive accessible web tax scheme allegedly cost the U.S. Treasury about $99 million. Read more about it at www.usdoj.gov/opa/pr/2004/May/04_tax_309.htm.
Through Project Civic Access, the USDOJ has entered into more than 135 settlement agreements with counties, cities, towns, and villages to ensure that they comply with the ADA. Frequently, these government jurisdictions have entered into settlement agreements that require them to implement accessible websites. For an example of an agreement requiring an accessible website, see the City of Sedona agreement, which includes the following:
WEB-BASED SERVICES AND PROGRAMS
22. Within 3 months of the effective date of this Agreement, and on subsequent anniversaries of the effective date of this Agreement, the City will distribute to all persons—employees and contractors—who design, develop, maintain, or otherwise have responsibility for content and format of its website(s) or third party websites used by the City (Internet Personnel) the technical assistance document, "Accessibility of State and Local Government Websites to People with Disabilities," which is Attachment E to this Agreement (it is also available at www.ada.gov/websites2.htm).
23. Within 6 months of the effective date of this Agreement, and throughout the life of the Agreement, the City will do the following:
A. Establish, implement, and post online a policy that its web pages will be accessible and create a process for implementation;
B. Ensure that all new and modified web pages and content are accessible;
C. Develop and implement a plan for making existing web content more accessible;
D. Provide a way for online visitors to request accessible information or services by posting a telephone number or e-mail address on its home page; and
E. Periodically (at least annually) enlist people with disabilities to test its pages for ease of use.
In August, 2004, New York Attorney General Eliot Spitzer announced settlements with two major travel websites to make the sites more accessible to visitors with visual disabilities. The websites, www.ramada.com and www.priceline.com, agreed to implement accessibility standards and to pay the State of New York $40,000 and $37,500, respectively, for the cost of the investigation. According to the press release, once the companies were notified of the accessibility issues by the Attorney General, they worked with his Internet Bureau to correct the issues. According to the press release:
Under the terms of the agreements, the companies will implement a range of accessibility standards authored by the Web Accessibility Initiative ("WAI") of the World Wide Web Consortium ("W3C"), an organization that recommends Internet standards. For instance, graphics and images must have comprehensible labels, tables must have appropriately placed row and column headers, and edit fields (boxes where the Internet user inputs information) which must be labeled to indicate which information is requested.
This public settlement closely followed a private settlement by Ramada in another case where I served as an expert witness on accessible web design.
The Telecommunications Act of 1996 was the first major revision of our nation' s communications policy in 62 years. Section 255 requires that manufacturers of telecommunications and customer premises equipment, as well as vendors of telecommunications services, make their products and services accessible to, and usable by, persons with disabilities, unless it is not "readily achievable" to do so (see the February 1998 Telecommunications Act Accessibility Guidelines).
This is not a federal procurement law, and it has a lower burden for compliance than Section 508, because "readily achievable
" means without significant difficulty or expense. It also has one major limitation in that Section 255 does not cover every function or service in the scope of the telephone network.
This was the first product design law to attempt to drive the market to create accessible products. It is not a traditional civil rights law, since it is an accessible design law that does not depend on the filing of a complaint for its requirements to be enforced. Although persons with disabilities can file a complaint with the Federal Communications Commission (FCC), this law does not provide for damages, and lawsuits are not authorized.
On September 22, 2000, the FCC reminded manufacturers and providers of voice mail and interactive products that they were subject to Section 255 (for more on this, see www.fcc.gov/eb/Public_Notices/da002162.html). As we watch the boundaries blur between the Internet and telecommunications, web developers should be reminded that interactive voice response (IVR) features on websites need to meet the accessibility requirements of Section 508. Let' s discuss Section 508 next.
Understanding that technology was becoming integral to the quality of life for persons with disabilities, former President Clinton signed the 1998 Amendments to the Rehabilitation Act into law. By strengthening Section 508 of the Rehabilitation Act, it provided an enforcement mechanism for the procurement of accessible electronic and information technology. I call this significant law the "ADA of Cyberspace."
A week before Section 508' s effective date, June, 25, 2001, President George W. Bush visited the Pentagon' s Computer/Electronic Accommodations Program Technology Evaluation Center and spoke about these new rules:
I'm pleased to announce that when Section 508 ... becomes effective for all federal agencies next Monday, there will be more opportunities for people of all abilities to access government information ... Increasingly, Americans use information technology to interact with their government. They rely on thousands of government web pages to download forms, learn about federal programs, find out where to turn for government assistance, and communicate with elected officials, such as the President. And because of Section 508, government web sites will be more accessible for millions of Americans who have disabilities. Section 508 will also make the federal government a better employer, as roughly 120,000 federal employees with disabilities will have greater access to the tools they need to better perform their jobs. This is one example of the successful public-private partnerships that are removing barriers to full community participation by Americans with disabilities. I thank the leaders of the technology industry who are with us today for your innovation and your ongoing cooperation.
For the first time in U.S. history, we have a procurement law that prohibits federal agencies (with limited exceptions) from developing, purchasing, using, or maintaining electronic and information technology that is inaccessible to persons with disabilities. Broad in scope, it requires functionality in the design of electronic and information technology including hardware, software, operating systems, web-based intranet and Internet information and applications, phone systems, video and multimedia products, and self-contained products such as fax machines, copiers, hand-helds, and kiosks. It covers both products and services.
On December 21, 2000, the U.S. Access Board published the Electronic and Information Technology Accessibility Standards, which are now part of the federal government' s procurement regulations. Provisions in the standards identify what makes these products accessible to persons with disabilities, including those with vision, hearing, and mobility impairments. The Board includes technical criteria specific to various types of technologies, as well as performance-based requirements, which focus on a product' s functional capabilities.
As the world' s largest consumer of electronic and information technology, the federal government is required to use the power of the purse to push the electronic and information technology industries to design accessible products. All vendors, whether they are U.S. or foreign, must design according to Section 508 if they want to participate in the federal government market.
Section 508 seeks to create a marketplace incentive to design for accessibility. In fact, vendors may protest the award of a contract to other vendors if they believe their product or service is more accessible. In addition, an agency can terminate a vendor' s contract for noncompliance or require the vendor to provide a compliant version of the product or service. Lastly, a growing number of state governments are adopting Section 508 policies or legislation, since they also want their products and services to reach the widest possible audience.
With respect to legal liability, compliance with the accessibility standards is required except where it would pose an "undue burden
" or where no complying product is commercially available. Undue burden is defined as "significant difficulty or expense
." Certain technologies related to national security are exempt. The law allows federal employees and members of the public with disabilities to file a complaint with the appropriate federal agency concerning access to products procured after the effective date. Alternatively, individuals may file suit against an agency seeking injunctive relief and attorneys'
fees alleging noncompliance with the accessibility requirements.
In addition, web developers should not need to be reminded that if they knowingly misrepresent compliance with accessibility standards, they may find themselves subject to a False Claims Act (FCA) violation. Under the FCA, the government may impose penalties up to $10,000 for each false "claim" and recover treble damages. (A false claim could constitute each invoice for accessible web design services.) In addition, the FCA permits individuals to file whistle-blower actions on behalf of the government. Such actions would enable the individual to receive up to 30 percent of the government' s recovery. The operative word here is "knowingly" misrepresenting compliance with Section 508, a definition that includes deliberate ignorance or reckless disregard of the truth. So there is all the more reason to read this book!
Implementation of Section 508 requires periodic compliance reviews and reports. Under the leadership of the USDOJ, every federal agency will periodically evaluate the accessibility of its electronic and information technology. In addition, the USDOJ will also evaluate agency responses to Section 508 discrimination complaints.
The first report, Information Technology and People with Disabilities: The State of Federal Accessibility, was presented to the President and Congress in April 2000. All executive agencies and departments, including the United States Postal Service, were required to conduct self-evaluations to determine the extent to which their electronic and information technology is accessible to persons with disabilities. One theme that emerged, which was discussed earlier in this chapter, in the "Office for Civil Rights, U.S. Department of Education" section, was that the USDOJ has determined that accessibility issues cannot continue to be addressed exclusively on an "ad hoc" or "as needed" basis. A systematic accessibility plan must be in place for electronic and information technology.
According to the April 2000 U.S. Attorney General report on the state of federal accessibility:
Data provided by the agencies suggest that the majority of agencies continue to handle IT accessibility issues exclusively on an "ad hoc" or "as needed" basis, instead of integrating accessibility into the development and procurement of their mainstream IT products. Many IT officials hold the mistaken belief that persons with disabilities can always be accommodated upon request by using widely available assistive technology devices (for example, screen readers, screen enlargers, volume control apparatuses, pointing devices that serve as alternatives to a computer mouse, voice recognition software, etc.) in conjunction with mainstream technology applications. Indeed, the goal of section 508 is to ensure that the agency will always be able to provide reasonable accommodations. Without adequate planning, however, the possibility of providing an accommodation to persons with a disability may be foreclosed. See, for example, the discussions of accessibility barriers created by certain uses of Adobe Acrobat' s Portable Document Format, in section III, n. 19. Use of an "ad hoc" or ‘as needed' approach to IT accessibility will result in barriers for persons with disabilities. A much better approach is to integrate accessibility reviews into the earliest stages of design, development, and procurement of IT. Once an accessible IT architecture is established, then and only then can persons with disabilities be successfully accommodated on an ‘as needed' basis.
April 2000 Report of the U.S. Attorney General Information Technology and People with Disabilities: The Current State of Federal Accessibility, Section II, General Findings and Recommendations, p. 7.
The Electronic and Information Technology Accessibility Standards, 36 CFR Part 1194, contain four subparts:
In particular, web developers should become familiar with Subparts B and D. Subpart B includes "1194.21 Software applications and operating systems" and "1194.22 Web-based intranet and Internet information and applications" (among others). Subpart D includes "1194.41 Information, documentation, and support."
The U.S. Access Board provides technical assistance for the implementation of Section 508, and web developers should first review and apply this information before inserting their own independent interpretations on the application of each rule. It is expected that additional guidance will be made available as the implementation moves forward.
There are two approaches to compliance with Section 508. First, a website would be in compliance if it met §1194.22(a) through (p). Second, a website would also be in compliance with Section 508 if it met the WCAG 1.0, Priority 1 checkpoints and 1194.22(l), (m), (n), (o), and (p) of these standards. See 36 Part 1194, page 80510.
Because WCAG 1.0 was not developed within the U.S. regulatory enforcement framework, it was not possible for the U.S. Access Board to adopt it as a standard for accessibility. However, the U.S. Access Board acknowledged that at the publication of the Section 508 Electronic and Information Technology Accessibility Standards, the WAI was developing the next version, WCAG 2.0. The U.S. Access Board stated that it plans to work with the WAI in the future on the verifiability and achievability of WCAG 2.0 when the time comes to revise the Section 508 web technical requirements.
Appendix B of this book covers the specific guidance provided by the U.S. Access Board for the implementation of the Subpart B web-based rules. The accessibility rules for software applications are also included. This is because the Section 508 web-based rule at 1194.22(m) requires plug-ins, applets, or other applications to meet all of the software application accessibility standards at 1194.21(a) through (l).
At the time of this writing, the U.S. Access Board has not provided Subpart D rule guidance. However, web developers should be aware that if their website contains product support documentation or help desk services for a federal agency, they must meet the requirements under Subpart D.
According to the U.S. Access Board, the first nine rules in §1194.22, (a) through (i) incorporate the exact language recommended by the WAI in their comments to this rulemaking, or they contain language not substantially different from WCAG 1.0, supported by the WAI. Rules §1194.22(j) and (k) were meant to be consistent with WCAG 1.0, but the U.S. Access Board needed to use language consistent with enforceable regulatory language. Rules §1194.22(l), (m), (n), (o) and (p) are different from WCAG 1.0 due to the need to require a higher level of access or prescribe a more specific requirement. The U.S. Access Board commented on certain WCAG priority one checkpoints and the reason for not adopting them (see Electronic and Information Technology Accessibility Standards; Final Rule; 36 CFR Part 1194, p. 80510):
the meaning of the provision is unclear."
So now we have two sets of technical specifications for accessible web design: the W3C WCAG 1.0 and the federal Electronic and Information Technology Accessibility Standards. Which should a web developer apply?
The answer depends on who owns the website. If it is a U.S. federal agency, or if the website is a vendor website that is accessed as a part of a help desk or vendor product documentation for federal agency services, then Section 508 applies.
If the website is for a state or local government agency, then it will depend on whether or not that agency has adopted Section 508. According to the study, State IT Accessibility Policy: The Landscape of Today, authors Diane Cordry Golden and Deborah V. Buck report that every state in the union, including the District of Columbia, has now adopted a web accessibility measure. They note that between 1996 and 2000, the number of states that adopted and formalized web accessibility practices flourished. This is reflected in various mechanisms such as state statutes, executive orders, policies, or technical standards. Some states have adopted Section 508, some have adopted W3C WCAG, and some have compiled standards of their own mix.
For this reason, it is very likely that local government agencies, such as counties, cities, and towns, may also have some form of web accessibility policy or practice in place. For example, in the State of California, Government Code 11135 requires that if local government agencies and higher education entities receive State funding, they must comply with Section 508, and this includes the accessible web technical requirements. The same is true for nonprofit organizations that receive State funding.
Here are some steps to follow:
And here is a list of people to talk to about what standards to follow:
But remember, Section 508 technical standards are minimum standards for accessibility, and this means that you can also implement additional accessibility standards from W3C WCAG.
It is my opinion that state and local government agencies should implement Section 508 since they are subject to the ADA and Section 504 of the Rehabilitation Act of 1973. This is because the ADA requires accessible websites for "effective communication
," and Section 508 tells us how to design accessible websites. This does not mean that an entity cannot also implement additional W3C WCAG to maximize accessible design. Many states have already adopted W3C WCAG for ADA-compliance reasons, and so now Section 508 provides the minimal legal requirements for accessibility.
In California, some education institutions had already adopted Section 508 prior to the State adoption by statute because of the federal Tech Act requirements. For example, the California Community Colleges took steps to ensure that information technology and services procured, leased, or developed with State or federal funding met the Section 508 requirements (see the June 11, 2001 Legal Opinion). This included long-distance learning as well as campus websites. This was because the Tech Act of 1998, which was scheduled to sunset in September 2004, and then was continued by Congress through the Assistive Technology Act of 2004, required that states receiving federal Tech Act money must comply with Section 508. However, as of the writing of this chapter, the 2006 budget being presented by President Bush eliminates state funding for Tech Act projects. Compliance because of Tech Act requirements may now be moot. Today, there are reasons other than the Tech Act for designing accessible websites.
And what about everyone else? If you are an employer, you may be subject to the employment provisions of the ADA. Any of your employees protected under the ADA could request your intranet or Internet to be accessible as a "reasonable accommodation
" in order for them to do their work. The bottom line is that it is a "best practice
" to follow Section 508 in addition to W3C WCAG. This is because Section 508 informs entities covered under the ADA and Section 504 of the Rehabilitation Act on what it means to design accessible websites for satisfying the "effective communication
" mandate for nondiscrimination.
In this section, we will look at proposed rulemaking addressing web accessibility, as well as some of the most common website features that cause problems for web users in their access to web content and services. After all, accessible web design enables your website to reach the widest possible audience, including older adults, people with disabilities, and people using alternative Internet access devices. Web developers need to be especially careful when designing these features, and policy makers need to be knowledgeable of the features and functionality required for enabling access to content and services.
In November 2004, the U.S. Department of Transportation issued a Notice of Proposed Rulemaking asking for comments on proposed rules by March 5, 2005. According to my communications with the agency, the final rules are expected to be published in mid-2006.
The proposed rulemaking is to revise its regulations that implement the Air Carrier Access Act of 1986 and to require accessible websites. The agency noted that in Access Now v. Southwest Airlines, the lower court found that ADA Title III required a physical place for a public accommodation and that a website was not such a place. But the agency noted that "the Air Carrier Access Act contains no such limitation
" and that:
The ACAA requires that all airline services to the public be accessible to persons with disabilities and provided in a nondiscriminatory manner. This applies whether the service is provided in person, over the phone, or on the internet.
Federal Register, Volume 69, No. 213, p. 64369, or http://a257.g.akamaitech.net/7/257/2422/06jun20041800/edocket.access.gpo.gov/2004/04-24371.htm
According to the rulemaking, new websites going online after the effective date of the new rules would need to be accessible. Existing websites would have two years to comply. Websites serving as affiliates, agents, or contractors for a number of carriers, such as Orbitz, Expedia, and Travelocity, would be required to be accessible. Airline carriers, both domestic and foreign, are subject to this rulemaking. Websites of foreign carriers would need to make accessible those portions of their websites that contain information on flights beginning or ending at a U.S. airport.
The agency also sought comments as to whether there should be additional or specific requirements added concerning online travel agencies (for example, websites that provide schedule and fare information and ticketing services for many air carriers).
One positive impact of e-government has been the streamlining of governmental transactions through the use of electronic forms. Because of the prevalence of forms used by governmental agencies, it should not be a surprise that electronic forms are specifically addressed in Section 508. Frequently, an electronic form is posted on the Web to be printed and completed offline. Even if online submittal is not an option, enabling the form to be completed online would be of great benefit to many people. Web developers should note that regardless of whether the form is to be submitted online, it is important that the form be designed so that a person using assistive technology can fill it out and understand the directions for completing and submitting it. For this reason, Section 508 covers electronic forms under both the software and web technical standards at §1194.21(l) and §1194.21(n).
As noted in previous chapters, there are accessibility issues with the portable document format (PDF). Until PDF issues are fully resolved, I (and the USDOJ) highly recommend that if web developers post PDF electronic forms, they should also post accessible electronic forms complying with Section 508 rules.
One of the most frustrating experiences for persons with disabilities has been the requirement at various websites to use applets, plug-ins, or other applications to access the content of the web page. Plug-ins can interfere with the functionality of assistive technology and can even cause the application to crash. Plug-ins may also have features and functionality that are inaccessible by design.
Section 508 addresses the problem by requiring that web developers using these applications meet the software standards at §1194.21. It is very important to note the guidance at §1194.22(m) from the U.S. Access Board: "This provision places a responsibility on the web page author to know that a compliant application exists, before requiring a plug-in.
"
This means that web developers must not use plug-ins that do not meet the Section 508 software accessibility requirements. Likewise, applets and applications are subject to the Section 508 software technical requirements for accessibility, so be sure to become familiar with the U.S. Access Board material in Appendix B.
Since this is a chapter about legal requirements, this is not the place to discuss the various methods for creating PDF documents and how to minimize accessibility problems in their creation (see Chapter 12 for advice on authoring accessible PDFs). Remember that it was the posting of City Council documents in PDF that brought an ADA complaint to the City of San José. Today, although Adobe has taken great strides to ensure that a PDF document has structure for assistive technology to access, there are still difficulties, especially in the conversion of complex documents to accessible HTML. Recognizing that there are benefits to having a print version of a document in PDF, the USDOJ recommends that if a document is posted in PDF, that an accessible version be posted as well:
Agencies should also test the accessibility of their pdf documents using screen readers before posting them to their web sites. Adobe' s accessibility site includes includes [sic] the latest recommendations for making pdf files accessible (http://access.adobe.com). Finally, agencies should be careful that non-text content be accompanied by text descriptions in pdf files. Agencies that choose to publish web-based documents in pdf should simultaneously publish the same documents in another more accessible format, such as HTML.
Therefore, a good practice is to not rely solely on the user to use plug-ins and PDF conversion tools to convert a PDF document to an accessible format. Setting aside the issue of accessibility for people with disabilities, imagine the frustration experienced by people using alternative Internet access devices such as cell phones and personal digital assistants who encounter documents that they cannot access. The USDOJ recommendation for web developers to do the conversion to ensure accessibility should be followed until we solve this problem. Moreover, it is essential that organizations review their processes for document creation and formatting as part of their overall strategy for addressing accessibility. At this time, it may very well be that the only way to ensure that a stand-alone PDF is accessible is to follow strict procedures to produce tagged PDFs, and then post them only after user testing.
Prior to Section 508, one web design technique to meet the ADA requirement for access to the President' s State of the Union video clip was to post the text version of the speech. As a result, people who were deaf or hard-of-hearing could watch the video, not understanding what was said, and then read the static transcript.
Today, Section 508 requires that text equivalents be provided for sound and that these be synchronized with multimedia presentations (see §1194.22(a) and (b)). Excellent free software tools such as Media Access Generator (MAGpie) are available to the web developer to make multimedia accessible to persons with disabilities.
Yet another challenge for web developers is the requirement that audio broadcasts be captioned so that the deaf and hard-of-hearing community can have equal and timely access to the content. According to the U.S. Access Board guidance found in Appendix C for rule §1194.22(a), it might appear that the guidance is correct when it says, "If the presentation is audio only, a text transcript would meet this requirement
." This is in error.
In response to my request to the U.S. Access Board for clarification concerning this rule and live audio broadcasts that do not contain video, I received the following communication:
If an audio file is on a web site, it is considered a non-text element and therefore needs a text alternative such as a transcript. If the audio instead of being a file, is an audio feed of a live event, even if it is only audio, the audio should be captioned as that is the only way to provide an equivalent alternative. A text transcript posted after the live session would mean that while the session was taking place, there would be no text equivalent and the web site would be in violation of 1194.22(a).
E-mail dated January 22, 2002, from Doug Wakefield, U.S. Access Board
Remember that audio is a nontext element that is required to be just as accessible as images. Many governmental agencies have been broadcasting public meetings on the Internet without realizing that they had failed to provide access to people who are deaf or hard-of-hearing. Government employees or members of the public who are required to listen to audio broadcasts for their work or for appearance before legislative hearings may need real-time captioning. The web developer should be aware that real-time captioning services might need to be contracted to meet accessibility requirements. In some cases, governmental agencies may also need to arrange for the display of captioning on a screen in the public hearing room so that people present at the meeting, as well as those on the Internet, can have access to the content of the audio. At this time, real-time captioning services are required for this functionality, since the voice-input-to-text-output technology solution is not at a level where it can be applied to meet this type of need.
This should be a reminder that accessible web design is a cross-disability issue. Accessible web solutions based solely on one sensory mode (such as speech output for hearing) may be helpful for the blind and low-vision community who may use a screen reader to hear the web page. But this solution will not meet the needs of those who are deaf or hard-of-hearing. So remember that technologies such as interactive voice response may not be the complete solution to accessible web design, especially if any of the interactive voice response content and service is not available on the website.
And since we are on the topic, interactive multimedia has its own challenges for accessibility. For example, Macromedia (now Adobe) has made a commitment to make Flash more accessible, as well as to make the Flash Player accessible to assistive technology.
Now that there are legal requirements for accessible web design in the U.S., it is my opinion that web developers should consider ways to indicate to the user when the content is not their own. This prevents your client from being drawn into an ADA or a Section 508 complaint process by the complainant. One method is to signal to the user at the link that they are leaving the website. However, if the website significantly relies on the content of an inaccessible website, the web developer should consider seeking legal counsel.
In summary, the ADA and Section 508 principles tell us that entities must adopt accessible web design policies and procedures for consistent implementation:
One impact of Section 508 is that it seeks to prevent proprietary extensions of accessibility in technology. Although technology changes, civil rights do not. We have now defined the commons where everyone can work and play through effective communication. But as technology evolves, it will be important to continually assess the state of accessibility for our electronic and information technology. Without accessibility, we cannot have effective governance.
Section 508 places the U.S. on the threshold of building accessibility into our Internet and intranet environments. Amidst all the technical and legal maze of requirements, standards, and guidelines, it is important to keep one fact clear: accessible web design offers opportunities to provide services to the widest possible audience, to the greatest extent possible, in ways that have been inconceivable until now.
The economic, political, and ethical benefits far outweigh the cost of this effort. The cost of being inaccessible—missing the boat on the coming age of thin clients, failing to serve our most needful citizens and employees, and legal liability—can be incalculable.
This millennium offers unprecedented opportunities for efficient, effective governance. The Internet should be accessible to all. It is the right thing to do.