Accessible Technology Bulletin
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Welcome to the DBTAC: Great Lakes ADA Center's quarterly Accessible Technology Bulletin
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The ADA and Website Accessibility
When Congress enacted the Americans with Disabilities Act in 1990, it found that “society has tended to isolate and segregate individuals with disabilities and such forms of discrimination against individuals with disabilities continue to be a serious and pervasive social problem.” 42 U.S.C. 12101(a)(2) Congress also sought to assure equality of opportunity, full participation, independent living, and economic self sufficiency” for individuals with disabilities. 42 U.S.C. 12101(a)(8)
Many people with disabilities are unable to access information on websites because of a variety of barriers that exist. However, the ADA does not specifically reference websites because it was passed in 1990 before the Internet became an integral element of our society. Most ADA litigation is occurring under Title III of the ADA, Public Accommodations.
Title III of the ADA covers public accommodations (i.e. private businesses open to the public). Under Title III, people with disabilities may not be discriminated in the “full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations of any place of public accommodation.” 42 U.S.C. 12182(a)
1. Place of Public Accommodation
A major issue in the Title III litigation is whether the defendant is actually a “place” of public accommodation. The Circuits are split as to whether there has to be a physical space in order to be covered by Title III. In a case involving insurance discrimination, the Seventh Circuit Court of Appeals held that Title III did not require a physical space for liability. See Doe v. Mutual of Omaha, 179 F.3d 557 (7th Cir. 1999) interestingly, although Doe did not involve website accessibility, the Seventh Circuit explicitly listed websites among the entities that are covered by Title III. Id at 559
2. Web Accessibility Cases
In Access Now v. Southwest Airlines, 227 F. Supp. 2d 1312 (S.D. Fla. 2002), a disability advocacy organization and a blind individual sued Southwest Airlines because its website was inaccessible. The court dismissed the claim that an airline’s website violated the Title III of the ADA. Specifically, the court found that because the website does not exist in any particular geographical location, it was not a place of public accommodation. The case was appealed the Eleventh Circuit Court of Appeals. However, on appeal, the plaintiffs changed their argument claiming that the website was part of a “travel service” and therefore, covered by Title III of the ADA. The Eleventh Circuit dismissed the case because this argument had not been made before the trial court and was inappropriately first raised on appeal. Access Now v. Southwest Airlines, 385 F.3rd 1324 (11th Cir. 2004)
In National Federation of the Blind v. Target Corporation, an advocacy group for blind people claimed Target violated Title III of the ADA and California state laws because its website was inaccessible. In denying Target’s Motion to Dismiss, the judge concluded that to the extent that plaintiffs alleged that the inaccessibility of www.target.com impeded the full and equal enjoyment of goods and services offered in Target stores, the plaintiffs stated an ADA claim. In other words, the court found the plaintiff’s ADA claim viable because Target’s website had a “nexus” to Target stores, which are places of public accommodation. The court also found that target treats its website as an extension of its stores and as part of Target’s overall integrated merchandising efforts. [2006 WL 257882 (N.D. Cal. Sept. 6, 2006)]
More recently, the court issued another order certifying the case as a class action lawsuit. The class is defined as “all legally blind individuals in the Untied States who have attempted to access www.target.com and as a result have been denied access to the enjoyment of goods and services offered in Target stores.” (There is also a “subclass” for California residents for claims arising under California law.) The court granted Target’s motion for summary judgment with respect to an individually named plaintiff, but allowed for the substitution of other named plaintiffs who can establish that their difficulties with Target’s website have impeded access to the goods and services available in the store. The court held that the named plaintiff’s state law claims survived Target’s motion for summary judgment. [2007 WL 2846462 (N.D. cal. Oct. 2, 2007)]
The case law is still developing as to whether there is a cause of action under the ADA for inaccessible websites. However, employers, public entities and private businesses should make their websites accessible to achieve the underlying purpose of the ADA to promote the full participation of people with disabilities in society.
This article is reprinted with permission from Barry Taylor of Equip for Equality and the Illinois ADA Project. The Illinois ADA Project is funded by DBTAC Great Lakes ADA Center, University of Illinois at Chicago.
Captioning of Online Videos Could be Law
Legislation was recently introduced that would mandate captioning and descriptions of Internet video as well captioning on smaller devices such as MP3 players and cell phones. The legislation does not include homemade videos such as those posted on YouTube. Devices would have to provide video description services and read aloud emergency messages that scroll across the bottom of the screen. In addition rules would extend to Internet phone services, such as Skype that let a user exchange voice, text or video communications over the Internet.
One of the difficulties in implementing captioning on the Internet is that the software, such as RealPlayer, Windows Media Player, and QuickTime, work differently on a technical level to display text. To address this issues WGBH/Boston, AOL, Google, Microsoft, Yahoo, and others formed the Internet Captioning Forum in 2007 to work on Internet captioning standards and to create a database of major captioning providers for web content providers.
- Access Denied - Washington Post Article June 19, 2008 http://www.washingtonpost.com/wp-dyn/content/article/2008/06/18/AR2008061803080.html?hpid=artslot
- Internet Captioning Forum (ICF) Press Release http://ncam.wgbh.org/news/icf.html
- Rep. Edward Markey (D-Mass.) Bill Sponsor http://markey.house.gov/
- Rep. Heather A. Wilson (R-N.M.) Bill Sponsor http://wilson.house.gov/
- National Center on Accessible Media http://ncam.wgbh.org/
The Great Lakes ADA Center provides expert assistance via a national toll-free information line 800-949-4232 (V/TTY) or Online via Contact Us and presents customized trainings for employers, businesses, government, and individuals with disabilities regarding accessible technology and the Americans with Disabilities Act (ADA) of 1990.Great Lakes ADA and Accessible IT Center
University of Illinois at Chicago
Department of Disability and Human Development (MC 728)
1640 West Roosevelt Road, Room 405
Chicago, IL 60608-6904