Landmark disability law now applies to life online

Back in 1990, then-President George H.W. Bush signed the Americans with Disabilities Act, the world’s first comprehensive law for people with disabilities. It was seen as making up for an area in which the Civil Rights Act of 1964 fell short. “The stark fact remains that people with disabilities were still victims of segregation and discrimination, and this was intolerable,” Bush said.

Now, the legislation passed at the dawn of the internet age is being adapted to ensure digital access for everyone. That means ensuring access to captions on web videos to support deaf Americans and the ability to resize text so people with low vision can read it.

Marketplace’s Lily Jamali spoke with consultant Nicolas Steenhout, who explained how the Department of Justice is updating the rules. The following is an edited transcript of their conversation.

Nicolas Steenhout: Until just a few months ago, the ADA did not specifically and explicitly apply to the web at all. The Department of Justice in March came in and they basically said, yes, the ADA applies, and the standard you have to follow is the Web Content Accessibility Guidelines version 2.1. Where the DOJ applied this specifically is for state and local government. So it’s not a blanket, but we have good indications that your regular business, your regular website that are not government-related, will also be covered by a coming ruling.

Lily Jamali: So you are a web accessibility consultant. How do these rules run parallel with how you advise businesses on how to make their online services more accessible?

Steenhout: It just clarifies a little bit what businesses have to do. The ADA, in many ways, has always applied to the web, even though it was not explicitly tied, because the idea was, if you have a business, it’s a place of public accommodation. Therefore, you are covered under the ADA. And quite frankly, the 4,000 or so accessibility-related lawsuits every year in the United States, when it goes to court, they aren’t really looking as to whether or not it meets a specific accessibility standard. They’re looking at, can a disabled person use this website or not? So the benchmark ends up being the guidelines, the WCAG Accessibility Guidelines. But now, we just have this much more certainty because the Department of Justice said, yes, it does apply, this is the standard you want to follow right now. We’re looking at state and local government, but we’re announcing that it’s coming down the pike. So really, it’s just making it a lot more clear that businesses have to have accessible websites.

Jamali: Yeah, well, it’s interesting that you’re talking about businesses, because I feel like people might think this is more focused on government websites and online services. So, it sounds like the private sector will very much be touched by this regulation.

Steenhout: The private sector will be touched by an upcoming ruling. In the digital accessibility community, there’s pretty strong understanding that a similar ruling will come through. But whether or not there’s a ruling by the DOJ, websites still need to be accessible. And if you’re not accessible, you are putting yourself at risk of a lawsuit. But more than that, if you have a website because you’re wanting to share information or sell a product, doesn’t it make sense to make it accessible to the more or less 26% of disabled adults in the United States?

Jamali: I wonder if you could visit with me a case from back in 2016, when a customer sued Domino’s Pizza. My understanding of this case is that the customer was visually impaired and alleged that the restaurant’s online services and app didn’t have accessible features, it lacked those. So what’s the latest on that case?

Steenhout: As far as I know, it has been settled. It went back and forth, and there’s been a lot of running around. The funny thing is that when Domino’s decided to fight this, they end up embarking on a multiyear legal battle that cost them probably a lot more than it would have cost them to just say, “Oh OK. Well let’s roll up our sleeves and fix this.” In the end, they had to settle — the amount of the settlement is not disclosed, so we don’t know — but they would have had to pay for all the settlement, but part of the settlement was also you’re going to have to fix your website, which puts them right back where they were at at the start of 2016.

Jamali: What was their argument?

Steenhout: Originally, Domino’s Pizza was saying that the ADA did not apply to them, so they didn’t have to make it happen. And the different courts ended up saying, well, actually, you are a place of public accommodation, so yes, you do have to make your website accessible and your app accessible.

Jamali: And has that case been treated as a precedent for other businesses?

Steenhout: Yeah, it’s a pretty big case. It’s one of the big ones like the Sydney Olympics back in 2000, where people are becoming aware of it. But ultimately, there seems to not be as much awareness about the need for accessible websites. There’s an annual report that looks at the top 1 million websites, and the latest results: of the 1 million top websites, each homepage has an average of 57 accessibility defects. So the landscape of website accessibility and digital accessibility for apps is getting better, but we’re still far from where we could be. Let’s face it, there’s a large segment of people out there that have accessibility needs, they have disposable income, they want to go and be able to buy your service, products and reach out, but if your website doesn’t work, then in this day and age when you need every client you can get, why not do it?

Jamali: I mean is that a case that you’re making with your clients, whether you’re launching a new website or redesigning an existing one, that you need to integrate these accessibility features from the start?

Steenhout: Absolutely. I tell them, accessibility work is like baking blueberry muffins. If you bake the muffin and you try to shove the blueberries after the fact, it’s going to be costly and it’s going to make a mess. If you put the blueberries straight into the batter before you bake it, then it’s going to be a lot easier, a lot cheaper and less painful. The best time to implement accessibility is now, when you start a new project.

Jamali: What about [artificial intelligence]? How is that affecting this push to make websites more accessible?

Steenhout: AI is tricky. There’s so much promise, and at the same time we’re not quite there yet. We can leverage AI to describe something, which is superhelpful to blind folks. We can leverage AI to create captions from audio. But if you look at the automated captions that a company, like a YouTube video, you quickly realize there’s no accuracy. It means people who rely on accurate captions won’t understand your content. The other big promise of AI right now are one-line-of-code solutions. These solutions claim to give you ADA conformance, but they don’t work. In fact, these so-called accessibility overlays are specifically named in many of the 4,000 digital accessibility lawsuits. So, yeah, AI shows promise, but don’t count on AI just now to fix accessibility on the web.

More on this

The publication K-12 Dive has been looking at how schools are working to provide digital access that complies with the ADA. The DOJ rules took effect in June, and public institutions have two to three years to comply.

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