ADA Policy can (and should be) expansive to include everything from physical ADA requirements (think ramps and rails) and the broad adoption of universal design principles across the entire organization, to web and digital accessibility requirements, which should cover not only websites and native applications, but also policies that consider such topics as emails, vendor selection, 3rd party content/service providers, assistive technologies, alternative access, help and support, etc.
Title III of the ADA prohibits “… discrimination on the basis of disability in the activities of places of public accommodations …” Today, that includes the Internet. “Digital Accessibility” is about providing equal access to individuals with a range of disabilities. The failure to provide accessible websites excludes millions. It is this exclusion that has led to hundreds of thousands of complaints, legal demand letters and hundreds of federal lawsuits since 2015.
In terms of access, the Internet poses an even bigger problem than the physical world. Every one of the 56.7 million people in the U.S. with a disability cannot realistically attempt to enter / access every physical structure – whether it is accessible or not. However, they can, attempt to access any of the 1.3 billion websites, so the issue of accessibility in the digital world is much greater than in the physical world. Whether physical or digital, people with disabilities are guaranteed equal access under the Americans with Disabilities Act.
In 2005, the Government of Ontario, Canada, enacted legislation to improve accessibility standards for the citizens of Ontario with physical and mental disabilities. This progressive, relatively new law, which establishes “Information and Communication Standard” requirements for accessible formats and communication supports for persons with disabilities, implemented firm deadlines relative to the size of the institution and sector in which it operates.
Under the Unruh Civil Rights Act, California legislation outlaws discrimination based on disability. This relatively new law has played a vital role in affirming inaccessible websites as discriminatory under the ADA Title III definition of “public accommodations”. Various legal precedents have been established that assert that businesses with operations in the state of California must comply with the requirements of Web Content Accessibility Guidelines (WCAG) 2.0, Level AA Success Criteria. Unlike other ADA-related laws, the Unruh Act allows for both statutory damages and injunctive relief, which adds an additional level of risk for organizations seeking to defend themselves against claims of non-compliance.
The Individuals with Disabilities Education Act (IDEA) is legislation that ensures students with a disability are provided with Free Appropriate Public Education (FAPE) that is tailored to their individual needs. IDEA was previously known as the Education for All Handicapped Children Act (EHA) from 1975 to 1990. In 1990, the United States Congress reauthorized EHA and changed the title to IDEA (Public Law No. 94-142). Overall, the goal of IDEA is to provide children with disabilities the same opportunity for education as those students who do not have a disability.
Addressing, resolving and/or complying with a settlement agreement is burdensome and expensive. Failing to comply with ADA-related requirements resulting in an OCR complaint can cost four or five times more than the cost of remediating an existing site.
In 2015, the Seattle Public Schools received an OCR complaint which ended in a lawsuit that culminated in a landmark settlement agreement for which costs were estimated to exceed $800,000.
Since then, there have been hundreds of OCR complaints filed against K-12 schools and institutions of higher education, including: Harvard, MIT, Maricopa Community Colleges, Arizona State University, NYU and many, many more.
There are different requests made by the OCR when seeking to enforce civil rights laws. The following provides an overview of the steps required to conform to stipulations outlined in demand letters sent from the OCR or comply with settlement agreements established with the OCR.
- Procure Accessibility Specialist
- Provide Accessibility Support Resources for End-Users
- Establish an Audit Priority Plan
- Audit Existing Content and Functionality
- Train Resources and Establish Policies and Procedures for New Content and Functionality
- Formalize a Corrective Action Plan
- Remediate Issues and Adhere to Corrective Action Plan Schedule
For this reason, AudioEye recommends a proactive approach to remediate existing sites to a) do the right thing by granting equal access to the widest audience possible, b) comply with ADA-related digital accessibility requirements, resulting in c) risk mitigation.
The OCR plays a key role in resolving complaints of discrimination. The OCR enforces several Federal civil rights laws including Section 504 of the Rehabilitation Act of 1973, which prohibits discrimination on the basis of disability and Title II of the ADA which applies to State and local governments which prohibits discrimination on the basis of disability in all services, programs, and activities provided to the public.
Failure to provide equal access to digital content for people with disabilities, is no different than failing to provide the physical accommodations – such as wheelchair ramps, elevator buttons in braille or flashing light cues – to individuals impaired by mobility, vision or auditory disabilities.
This means that an individual, group or organization can file an OCR complaint, whether or not they are a direct victim of the alleged discrimination.
Basically, if someone sees that a school doesn’t have a wheelchair ramp, they can file an ORC complaint because a student in a wheelchair is being denied equal access to the school.
As it relates to digital accessibility, for example: if the school’s websites, public or internal facing, are not digitally accessible, a person with or without a disability, can file an OCR complaint, citing that people with disabilities, because they are being denied equal access to information as a result of the failure of the school or school district, to provide equal access to information, are being discriminated against on the basis of their disability.
This means schools and school districts have exposure beyond the 15% – 20% of the population that has a disability; anyone can file a complaint against a school for their failure to provide equal access.
A complaint can be filed by anyone who believes that an education institution or program described above, that receives Federal financial assistance has discriminated against someone on the basis of race, color, national origin, sex, disability or age. The person or organization filing the complaint does not need to be a victim of the alleged discrimination but may complain on behalf of another person or group.