Defining “Public Accommodation” in Virtual Worlds

Posted on Nov 8, 2009

Regular readers of this blog, as well as those who have heard me speak within the past year or so, are already familiar with some of the themes discussed regarding virtual worlds and accessibility. Two stories arose this weekend that could potentially add fuel to the discussion. Although wholly separate, the two threads are more related than they may appear at first.

Virtual Worlds as Workplace Software

The first story came in Saturday’s online edition of CNN about the business use of virtual environments. With travel budgets continuing to shrink, companies are searching for innovative ways to cultivate collaboration, engagement and insight. Multi-user virtual environments (MUVE) are increasingly becoming the option of choice.

The MUVE platform mentioned most often is Second Life’s Enterprise technology, developed by Linden Lab and currently in use at more than 1,400 organizations. Employees build their own avatars and “meet” in a digital space, view presentations, gather feedback from other participants, chat within a firewalled community and attend training sessions. Think of MUVE as all the benefits of offline conferencing, without the expense and effort of travel.

IBM is an example of a global company that has embraced MUVE for online meetings and training. According to the article, 350 technical leaders from around the globe recently met via Second Life as part of a 72-hour brainstorm session. In addition, IBM has developed it’s own virtual meeting space called Sametime 3D that appears to combine the Second Life experience with their Lotus Sametime network.

“We had a whole range of environments, from auditoriums and collaboration pods to social areas where the avatars could pick up a beer around a log fire, or walk around a sculpture park and talk,” Rashik Parmar, IBM’s chief technology officer for Europe, told CNN … “Not only did we save travel time, but because the environment was so engaging, a lot more ideas came through,” he said.

Visually Impaired Gamer Sues for Lack of Virtual World Accessibility

The second piece is a GameSpot article from yesterday reporting a lawsuit brought against Sony, Sony Online Entertainment (SOE) and Sony Computer Entertainment of America for not making their virtual worlds more accessible to people with visual impairments.

The suit was filed in the federal court of California and claims that Sony’s failure to modify its technology is a form of discrimination, citing virtual worlds as a form of public accommodation protected by the ADA. The claim also insists that barriers to use prevent the Plaintiff from “fair participation” in SOE’s official auction site, thus depriving blind users of commercial opportunities.

It must be mentioned at this time that we do not yet know the feasibility of this claim, or whether the failure to provide accommodation for gaming technologies can be classified as a violation of the Americans with Disabilities Act. We do not know the exact nature of the Plaintiff’s disability or how Sony has allegedly failed to comply with requests to modify their games. The thread of comments below the article covers a vast range of opinions, with the following missive offering perhaps the most plausible interpretation:

(T)here is a concept called “Bona Fide Occupation Qualification”, or BFOQ … courts have recently interpreted the BFOQ rule to apply to businesses with regards to potential consumers because a company going out of its way to accommodate a scant few individuals at the possible expense of a greater number of consumers (presents an obstacle to the business).

At some point it was inevitable that virtual environments would be subject to the same legal and accessibility questions as other online media streams. That said — the pending suit, while interesting, isn’t anywhere close to the landmark case that NFB v. Target Corp was in terms of barrier-free Web access. The incongruities are too speculative to determine that this is an actionable claim against a corporate giant such as Sony.

The opinion here is that this case, pending the specifics of the Plaintiff’s disability and the court’s interpretation of the applicable law, with either be nominally settled out of court or dismissed outright. But there is a bigger issue to investigate.

Virtual Public Accommodation

Arguing the case for accessibility among recreational gamers might very well turn out to be a futile endeavor. However, accessibility in workplace software is a legal and moral imperative. It is the responsibility of employers to offer reasonable accommodations to their employees in the form of tools and environments. The intention is to provide people with disabilities the same opportunity to do their jobs as effectively and successfully as their nondisabled colleagues.

We must consider, then, the context of virtual worlds being applied to meetings and training. If a company fails to provide an accessible “game” experience for blind employees, an argument could be made that the employer discriminated against that person for not allowing access to training or other forms of meetings. If virtual worlds become more commonplace in business (and a recent Gartner report indicates that they will be), the issue of digital accessibility will enter an entirely new realm of inquiry, with acute consequences.

Also of significance is the role virtual environments play as part of enterprise culture. One of the key benefits cited for virtual meetings is that they bring people together from around the world, without the need for expensive travel. One could argue that software that delivers online meetings must be subject to the ISO 9241-171 international guidance on software accessibility in the workplace. This would cover not only aspects having to do with ergonomics, screen displays and haptic interfaces, but also learning systems, content libraries, training and access to information.

Granted, the scenarios discussed above are a long reach. Virtual environments in the workplace are very much in their infancy, and until their proliferation is more robust then these questions are merely conjecture. That being said, we as technologists must adhere to the belief that barrier-free digital access extends beyond the common website. We must investigate what these new forms of engagement mean in the context of delivering opportunity to people with disabilities. And we must begin to define what the term “public accommodation” means for people who depend on virtual technologies to live and work.

Further Reading