What is ADA compliance for websites?
The History of the ADA
As we’ve recently celebrated the ADA’s 30th anniversary, we wanted to look back at its history. The ADA was first introduced in the 100th Congress, and it bans discrimination on the basis of public accommodation, public services, employment, transportation, and telecommunications. It was signed into law by George H.W Bush on July 26th, 1990, and final regulations for Title I and employment provisions of the ADA were issued the following year.
This was the first comprehensive declaration of equality for those with disabilities. Focused on physical accessibility and accommodations, it led to the widespread adoption and acceptance of wheelchair access ramps, accessible restroom facilities, and other equal-access accommodations that are now regular parts of most American workplaces and homes.
“Let the shameful walls of exclusion finally come tumbling down,” said President Bush, signing into law a simple yet long overdue message: that the millions of Americans with disabilities have access and are entitled to legal protection that ensures equal opportunity.
The ADA is significant because it officially adopted a public policy committed to integrating those with disabilities. Historically, people with disabilities, whether mental or physical, were ostracized by society, with recorded instances of ridicule, torture, imprisonment, and execution. In colonial times, it was considered the family’s responsibility to take care of individuals born with disabilities or who became disabled later in life through illness, injury, or other causes.
However, there was much shame and a lack of understanding surrounding what was exactly wrong with these people. A system of “farming out” people whose families were unable or unwilling to support them to people who received public assistance to provide for their room board, and care, survived until the late 19th century.
Public concerns arose over abuses, with recorded cases in which care providers collected their fees and then locked people with disabilities in attics to starve or freeze to death, which led to a change in focus eventually to a more organized, institutionalized care in the 1820s.
The integration of institutionalization led to “warehousing,” referring to the custodial nature of this care. This resulted in viewing those with disabilities as defective, incompetent, and a burden to society, leading to them being isolated from society in order to survive.
This was a flawed way of dealing with this issue because it resulted in widespread abuse and neglect. Additionally, institutions did promote productivity or independence, with the protective isolation model operating on the assumption that these people need to be segregated and protected from the hardships of society, restricting their freedom to live productive lives. The 1920s had the return of veterans from WWI and an increasing number of industrial accidents, leading to more people with disabilities which required rehabilitation and a return to work. The development of welfare and entitlement programs provided an alternative to total care institutions. Federal legislation created rehabilitation structures in the US, currently seen in the provisions of the Rehabilitation Act of 1973.
Between 1920 to 1960, the return of WWII, the Korean War, and the polio epidemic brought about an increase in available rehabilitation services. More breakthroughs in medical technology meant more people were surviving diseases and accidents, leading to developments in the availability of people with disabilities to be more physically mobile. More work and recreational programs were created, and many of these organizations advocated for legislative and policy changes to help those with disabilities.
The charity approach to disability was evidenced among those who wanted to “help the handicapped.” This period was characterized by many people of certain classes coming together based on qualities of normalcy, deservedness, and employability. It rejects the paternalistic care that impedes the realization of the full potential of people with disabilities.
Influenced by the goals, rhetoric, and tactics of the civil rights movement and women’s suffrage, the modern disability rights movement led to the increased prominence of people with disabilities becoming leaders and spokespersons. In the 1970s, the first national cross-disability movement was organized.
The new paradigm rejects the “medical model” that disabilities are abnormal or deficient. It maintains that they are competent and have the right to govern their lives, and realizes the importance and goals of public policy to create meaningful, equal opportunity. A core belief of this movement is removing all roadblocks, whether attitudinal, communicative, transportive, or physical barriers which will result in a substantial enhancement in the integration of people with disability into our society.
Congress Takes on a New Role in Disability-Related Legislation
Starting in the late 1960s, Congress took steps to pass a series of laws that focussed on providing equal opportunity, including statutes providing access to public facilities and public transportation.
The Rehabilitation Act of 1973 created a federal board to coordinate and monitor access to public buildings and transportation, prohibited discrimination of employment by the Executive Branch, and required affirmative action to hire people with disabilities by federal agencies and contractors. It had a key national mandate disallowing the discrimination of those with disabilities by recipients of federal financial assistance. Section 504 of the Rehabilitation Act served as a model for many of the ADA’s provisions.
The Education of All Handicapped Children Act of 1974 required that all children with disabilities be entitled to a free appropriate public education, ending separate and unequal education opportunities and promoting the integration of such individuals. The Fair Housing Act of 1968 added protection for people with disabilities and was amended in 1988.
As more companies hired people with disabilities, their company performance improved. Full employment and hiring people with disabilities proved that it was not for altruistic reasons, but it strengthened their workforce and the health of their enterprises, as business leaders favor the “full participation” of citizens with disabilities.
In 1986, the National Council on Disability (NCD), an independent federal agency, issued Toward Independence, a report in which the Council examined incentives and disincentives in federal laws towards increasing the full integration of people with disabilities into our society. The principal conclusion was the adoption of comprehensive civil rights legislation, eventually becoming the Americans with Disabilities Act or the ADA.
Following the ADA being signed into law in 1990, final regulations for Title I, employment provisions, and final regulations for Title II (public services) and II (public accommodations) on July 26th, 1991. The 1990s and early 2000s saw the ADA evolving as courts interpreted the Act. During that time, the Supreme Court decided on 20 ADA cases, five of which centered around the definition of disability, and four of them significantly narrowed the definition of disability.
The ADA Amendment Act of 2008 (ADAAA) was enacted on September 25th, 2008, and became effective on the first day of 2009. The ADAAA led to several Supreme Court decisions being overturned, as Congress believed it had interpreted the definition of “disability” too narrowly. This resulted in the denial of protection for many individuals with an impairment such as cancer, diabetes, and epilepsy.
Also, it directed the U.S. Equal Employment Opportunity Commission (EEOC) to amend its ADA regulations to reflect the changes from the ADAAA. The definition of “disability” was changed under the ADA, as it should be interpreted in favor of broad coverage of individuals. An important statement in the Purposes section of the ADAAA lays out the intention of the ADA: that it should focus on whether discrimination, not on an exhausting analysis of whether the person has a disability.
The ADA Transitions into the Digital Age
Even after undergoing amendments in 2008, there was no specific coverage under the law when it came to online compliance. This led to the debate of Title III of the ADA: does a website count as a “place of public accommodation?” Various courts ruled that websites were places of public accommodation, while other cases concluded that websites are bound by regulations if there’s a close “nexus” between the site and physical location. With no overarching federal laws in place, websites became a grey area in whether they can be governed by ADA accessibility rules.
In January 2018, federal regulations would go into effect with the standards of WCAG 2.0 Level AA, the set of guidelines providing the basis of online accessibility rules for most of Europe and other parts of the world. The Trump administration, however, has withdrawn from this requirement as a push toward deregulation, leaving online websites and applications in a murky situation.
Therefore, ADA compliance is not currently mandatory under the federal government, but many states have adopted their own accessibility laws, and the number of accessibility-related lawsuits has skyrocketed over the past few years. The WCAG guidelines were updated in June 2018 to version 2.1, which addresses changes in technology and areas that were underrepresented in 2.0.
WCAG guidelines have accessibility issues on three levels. Level A is the most urgent and includes issues that severely limit a disabled visitor’s ability to use a website. Level AA is rooted in functionality, where there are areas of improvement to give disabled users a full experience of the website. Level AAA is the highest standard, which expands on issues in Level A and AA. You can read more about WCAG here.
The WCAG guidelines also broke down four distinct groups in the acronym P.O.U.R: perceivable, operable, understandable, and robust. Overall, the ADA and online accessibility have seen significant steps toward progress, but it remains vague for the foreseeable future. However, as more people rely on internet services, there is no question that equal access online is a major concern in the U.S.
What will happen with the ADA in the 2020s? What changes will be made for website compliance? As the ADA takes on the role to provide equal opportunity for online services, we hope to see more positive improvements to help people with disabilities navigate websites and ensure equality for everyone online.
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The ADA prohibits any private businesses that provide goods or services to the public, referred to as “public accommodations,” from discriminating against those with disabilities. Federal courts have ruled that the ADA includes websites in the definition of public accommodation. As such, websites must offer auxiliary aids and services to low-vision, hearing-impaired, and physically disabled persons, in the same way a business facility must offer wheelchair ramps, braille signage, and sign language interpreters, among other forms of assistance.
All websites must be properly coded for use by electronic screen readers that read aloud to sight-impaired users the visual elements of a webpage. Additionally, all live and pre-recorded audio content must have synchronous captioning for hearing-impaired users.
Websites must accommodate hundreds of keyboard combinations, such as Ctrl + P to print, that people with disabilities depend on to navigate the Internet.
Litigation continues to increase substantially. All business and governmental entities are potential targets for lawsuits and demand letters. Recent actions by the Department of Justice targeting businesses with inaccessible websites will likely create a dramatic increase of litigation risk.
Big box retailer Target Corp. was ordered to pay $6 million – plus $3.7 million more in legal costs – to settle a landmark class action suit brought by the National Federation of the Blind. Other recent defendants in these cases have included McDonald’s, Carnival Cruise Lines, Netflix, Harvard University, Foot Locker, and the National Basketball Association (NBA). Along with these large companies, thousands of small businesses have been subject to ADA website litigation.
Defendants in ADA lawsuits typically pay plaintiff's legal fees, their own legal fees for defending the litigation, and potential additional costs. In all, the average cost can range from tens of thousands of dollars, to above six figures. There are also high intangible costs, such as added stress, time and human capital, as well as reputational damage. Furthermore, if the remediation is incomplete, copycat suits and serial filers can follow, meaning double or triple the outlay. It's vital to implement a long-term strategy for ensuring your website is accessible and legally compliant.