The New Digital Divide: Accessibility in Cyberspace

Volume 22
Number 1

The blistering pace of technological development in recent years has both generated new opportunities and raised new barriers for individuals with disabilities. Perhaps no issue has been more fraught with confusion and contention than accessibility in the online environment. There is hardly a business, agency, school, or employer that is not using websites or mobile apps to enable people to obtain information, communicate and interact with the organization, or participate in programs.

For many of us, it has become routine to use one of the many web-enabled devices we have at hand to register for a class (or take the class), apply for a job, or order the delivery of a dizzying array of goods and services. We enjoy a degree of convenient access to an expanded field of opportunities that would have been nearly unimaginable only a few decades ago. But, as with many “advances,” some people are left behind or left out, and among them are many with disabilities who are blocked by inaccessible features of websites, forms, and apps.

Individuals who are blind or have low vision may not be able to access content that is presented in visual-only formats, such as images that don’t have behind-the-scenes “alt tags” or text descriptions that can be read by an individual’s assistive technology and converted to speech or output to a Braille device. People with limited dexterity may have difficulty with time-out features on web forms. Videos without captions may be nearly useless for individuals who are deaf or hard of hearing. Cluttered designs or complicated navigation schemes can frustrate people with a variety of limitations, including intellectual or cognitive disabilities.

The questions about whether (or to what extent) the ADA reaches into cyberspace, as well as the technicalities of how to measure the accessibility of digital things, have been the subject of a great deal of analysis and debate.

The Legal Landscape

Title I of the ADA, which is regulated by the U.S. Equal Employment Opportunity Commission (EEOC), broadly covers all of the employment practices of state and local governments and private employers with at least 15 employees. Title I prohibits discrimination against qualified applicants and employees with disabilities, and requires the provision of reasonable accommodations when necessary.

The U.S. Department of Justice (DOJ) regulates Title II, which covers all state and local government programs, and Title III, which covers many private businesses that offer goods and services to the public. DOJ has for many years taken the position that both Title II and Title III reach the virtual realm, and that if businesses or state or local government agencies use websites to disseminate information, facilitate programs, or offer goods or services, individuals with disabilities must have equal chances to take advantage of those opportunities.

Because Title I and Title II are so broad, reaching virtually everything covered entities do, there has been somewhat less disagreement about whether the ADA applies to their online activities.

However, coverage under Title III is more narrowly defined. Private businesses that serve the public are covered if they offer certain types of classes or tests related to educational or professional purposes, or if they “own, operate, lease, or lease to” any of twelve specific types of places of public accommodation. There are many examples of businesses that fall within at least one of the twelve types – stores, theaters, banks, amusement parks, restaurants, fitness centers, hotels, and medical practices are just a few.

There has been a great deal of dispute about whether Title III reaches the online presence of any of these places, and even more dispute about businesses that operate only in the online environment (for example, a “store” that exists only online, but has no physical location where customers can go to shop).

DOJ has engaged in enforcement actions, entered settlement agreements, and written technical assistance documents and legal briefs which state their position that Titles II and III apply to online content and activities, including the activities of online-only businesses.

The Department has argued that a business need not provide its goods or services “at” a physical place, but merely that the nature of the goods and/or services offered fall within at least one of the types covered by Title III.

DOJ filed, in June of 2000, a brief in the case of Hooks v OKBridge, where a court had ruled that a company operating an online bridge tournament business could not be covered by Title III since it offered its service via the internet rather than at a physical place. The Department stated that the court’s reasoning would “render a wide range of ordinary service establishments outside the coverage of the Act whenever their services are provided over the telephone, through the mail, via the internet, or at some location outside the premises of the business. For example, catalog merchants, furniture delivery companies, courtroom lawyers, plumbers, and food delivery services would be able to refuse to serve patrons with HIV, mental illness or other disabilities. Moreover, a company that offers services both on-site and through other means (such as a travel service that arranges reservations both over the phone and at a walk-in office) would be required to offer non-discriminatory services on-site, but be free to discriminate over the phone or the internet.”

The Department said neither the language nor the purposes of the ADA would “require or permit such an absurd result.”

DOJ has entered a number of settlement agreements or consent decrees under both Title II and Title III that address web access. The Department routinely addresses online access when it conducts “Project Civic Access” compliance reviews of state and local government agencies, and has entered more than a hundred settlement agreements with cities, towns, and counties across the nation that require improvements to websites.

Agreements have been reached with private entities that include online-only businesses (e.g., EdX Inc., a provider of online courses, and Peapod LLC, an online grocery shopping and delivery service), as well as those that operate both online and at physical locations (e.g., HRB Digital LLC and HRB Tax Group, Inc., or “H&R Block” tax preparation service).

The Courts

Both DOJ and private plaintiffs have stepped up legal actions in recent years, seeking to compel covered entities to improve access to their websites and mobile apps. Not all courts have been receptive to lawsuits that allege ADA violations based on inaccessible websites, particularly those brought against online-only businesses.

While some courts have agreed with DOJ’s reasoning, noting that it would frustrate the purposes of the ADA if online businesses were able to exclude individuals with disabilities by disregarding accessibility concerns, other courts have adopted a more limited approach, holding that a business’ website must have a “connection” to the operation of a physical location.

Also among the reasons some courts have hesitated to apply the ADA to websites is the lack of specific technical standards that can be used to measure compliance. Several years ago DOJ began a rulemaking process to consider the development of web accessibility standards under Titles II and III, but recently this (and three other) ADA Advance Notices of Proposed Rulemaking (ANPRMs) were withdrawn.

Where We Are Now

The withdrawal of DOJ’s rulemaking has left some individuals with disabilities and advocates, as well as some covered entities, disappointed after anticipating more specific guidelines in this area.

After all, when ADA regulations were developed in the early 1990s, as DOJ stated in their 2010 ANPRM on web accessibility, the internet we know today “did not exist.” Today, it “plays a critical role in the daily personal, professional, civic, and business life of Americans.” The internet has “dramatically” changed the way government agencies serve the public, as well as the way individuals gain information and education, obtain goods and services, and interact and socialize. Exclusion from the online community “puts individuals at a great disadvantage in today’s society.”

Still, in the absence of federal rules, there is a wealth of guidance and resources on how to create accessible websites and other technologies. Information is readily available to businesses and government agencies that want to improve accessibility in this arena, enhancing workforce diversity, expanding opportunities for business growth, and easing the delivery of information, goods, and services.


Web Accessibility Initiative (WAI)

This project of the World Wide Web Consortium (W3C) develops the Web Content Accessibility Guidelines (WCAG), and offers a wide variety of training materials, tutorials, design tips and techniques, information on evaluation and authoring tools, and resources on planning, implementing, and managing web accessibility.

U.S. Access Board

This independent federal agency develops accessibility guidelines for facilities, vehicles, equipment, and information and communication technology (ICT). The Board’s guidelines under Section 508 of the Rehabilitation Act (which covers federal executive agencies) and Section 255 of the Telecommunications Act (which covers telecommunications products and services) address computers, software and operating systems, websites, video and multimedia products, self-contained closed products (e.g. copiers, information kiosks), and a broad range of telecommunications products.

The contents of this newsletter were developed under a grant from the National Institute on Disability, Independent Living, and Rehabilitation Research (NIDILRR grant number 90DP0089). NIDILRR is a Center within the Administration for Community Living (ACL), Department of Health and Human Services (HHS). The contents of this newsletter do not necessarily represent the policy of NIDILRR, ACL, HHS, and you should not assume endorsement by the federal government.

© 2018 TransCen, Inc.