Redefining the ADA
Despite what some folks believe, there is scarcely any language in the Americans with Disabilities Act (ADA) that specifically addresses the accessibility of web content. In a recent article on WebAIM, Cyndi Rowland calls for increased advocacy on behalf of Internet users; the intention is to ensure that the Web is taken into consideration during upcoming discussions regarding updates to Titles II and III.
Title II of the ADA deals with benefits and services provided by state and local governments, essentially everything other than employment (which is covered in Title I). Title III is of particular interest, addressing the issue of discrimination in places of public gathering. The entire edifice of debate regarding web accessibility orbits the issue of public accommodation — should a website be considered a physical space, subject to the rights and privileges afforded such places as stores, banks, schools, etc? You’d be surprised how prickly a question that is.
Rowland provides an excellent primer on the issues surrounding the proposed ADA Standards for Accessible Design and raises a critical issue:
Absent in the proposed ADA standards is clarification or mention of the Internet in ways helpful to many of us. It could have been easily covered in many places (e.g., in clarifying the provisions of effective communication or in clarifying the Internet to be a place of public accommodation). But for whatever reason it is not there. I hope that many, many voices will be heard through the NPRM process on the need for this new regulation to clarify the importance of accessible web content in titles II and III.
One positive development is this report provided by the National Council of Disability, citing the need to reconsider what we mean when we refer to the accessibility of public spaces. The report investigates some of the rationale behind the 2002 dismissal of a suit against Southwest Airlines, offering perhaps a different way the case could have been approached:
The first question for the court should have been: where the customer with a disability is not totally prevented from buying a ticket–but may only be able to buy it in person, during business hours, after traveling some distance, probably at a higher price, etc.–whether those disadvantages are enough to warrant the finding that the Web site violates the law. Put another way, do the higher cost, greater difficulty, lesser choice and other limitations imposed upon ticket buyers with disabilities who are excluded from the Web site constitute a barrier to access to air travel or a policy or procedure that tend to screen out customers with disabilities?
But the court did not engage in such an analysis or ask any of these questions. In part this may be a result of the way the plaintiffs went about arguing their case. Judging from the opinion and the complaint, it appears that they focused not on the right to accessible information, nor upon the harm and inequality that resulted from denial of such access, but rather on access to the Web site as an end and a right in itself.
I’m building up to a longer post (and perhaps a book idea) around the concept of defining what”physical space” currently means to our increasingly digital existence. Here’s a hint: I’m not entirely convinced that the ADA discussion ends with transactional web experiences or destination websites.
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