Government and Disability Rights Law

Support Access Ready, Inc.

Beyond Websites – Government Technologies and Disability Rights Law

By Eve L. Hill

Inclusivity Consulting

Public Access

Title II of the Americans with Disabilities Act (ADA), covering all state and local governments, was enacted in 1990 and Section 504 of the Rehabilitation Act, covering all recipients of federal funding, has been in place since 1973. These laws are unequivocal:  they require covered entities to ensure their public communications are equally effective for people with disabilities as for people without disabilities.  The Department of Justice has made clear that Title II requires all services, programs, and activities of public entities, including those provided or received via kiosks, electronic voting machines, emergency alert systems, public address and notification systems to be accessible.

Equally effective communication generally means people with disabilities can access or acquire the same information, engage in the same interactions, and enjoy the same products and services that the government’s communications offer its sighted participants with substantially equivalent ease of use.  All types of communication are covered – including information technology (IT)-based communication.  To be effective, accessible communications must be provided in a timely manner, and in such a way as to protect the privacy and independence of the individual with a disability.  These requirements apply to both communications the state or local government makes to members of the community and communications it receives from the community.

The only defenses available are when the state or local government documents in advance, and can prove, that, using all its available resources, it is too difficult or too expensive to accomplish accessible communication or it would fundamentally alter the nature of the communication or program to make it accessible.  Even if one of those defenses applies, the government entity is required to do everything it can to provide accessible communication up to the point where the burden becomes too great.

So if a state or local government agency, department, or office is providing information, services, programs, or activities to the public via communication technology, or if it is receiving information, requests, complaints, applications,  and the likefrom the public via IT, it ignores the accessibility of those communications at its own peril.

In the bygone era of just paper-and-pencil documents and in-person or telephone communications, equally effective communication generally meant providing large print, taped texts, and Braille formats for documents, and using sign language interpreters, relay services, and captioning for meetings and telephone calls.  These are known in the ADA and Section 504 as auxiliary aids and services.  As we have entered the age ofinfornation technologies, auxiliary aids and services have also advanced technologically.  A digital technology can be made accessible to blind and low vision people by ensuring the information it conveys can be provided both visually and audibly (or in tactile form) and that both visual and nonvisual means of inputting information are available.  For example, information or registration kiosks can provide a headset jack allowing audio output of all visual information and a device with touchscreen input can include a tactile keyboard or keypad, audio navigation.  Similarly, captioning for video and audio information is readily available for people with hearing disabilities.

If a government uses an information technology that is not accessible, the government will have to maintain an equivalent system for communicating with people with disabilities.  That separate accessible system, whether it is a staff person onsite at the information device, a staffed telephone line, or some other means, is likely to be expensive and may still violate the ADA’s requirement of equally effective communication.  A staff-based substitute for an information kiosk, for example, would need to be available 24 hours a day, 7 days a week, 365 days a year, just as the kiosk is.  The staff would need to be prepared to orally provide all the information on the kiosk, and carry out transactions for a blind person.  The staff would need to be prepared to transcribe or interpret all the speech and audio content of videos and audio programming.  And the staff would need to be prepared to accurately and privately input any information the person with a disability wanted to communicate back to the government agency.  All of this would need to be timely, accurate, and complete, while not placing additional burdens on the person with a disability and while maintaining their privacy and independence.

Accessible technology does not happen automatically.  In order to avoid the expensive, noncompliant fall-back system of access, state and local government leaders, as well as their technology designers, technology vendors, content creators, and communicators, have to incorporate accessibility as a matter of course, not as an exception, both when developing or purchasing new technology or content, and as part of a planned remediation strategy.

 

 

No More Death and Disability for Profit Through Mass Gun Violence

American Flag with blue sky and white clouds

The world has turned around many times since I first posted this article. There have been fifty plus school shootings since the halls of Parkland echoed with gunfire and the cries of children. There have been hundreds more since Columbine and still we the people have done nothing. The bravery of one young person at a Colorado school has over aged us all and his name should not be forgotten while the names of the shooters must never be remembered. In the brave spirit of Kendrick Castillo let us all be just as brave in facing the duty we all have in the shadow of Kendrick’s sacrifice. The National Rifle Association (NRA) through their abuse of free speech is still a clear and present danger to the safety and security of the United States. Now quite proper questions are being raised about not only their tactics, but their tax-exempt status. Never have so few, endangered so many for so long. It is not just about the tragic deaths of children for whom we all grieve. It is also about the millions physically and mentally disabled by gun violence.  Great companies are and should continue to sever ties with the NRA and the voices of millions of young people are not intimidated by the tactics of gun extremists. The disability rights movement should follow on to prevent millions of gun-related disabilities in the future. Let us find a compromise.  The Second Amendment is a sacred constitutional trust between the American people and the government, we the people, established. Polls indicate that a super-majority want laws that make sense and at least attempt to keep guns out of the hands of the dangerous and deranged to help prevent deaths and disabilities through mass gun violence.  We must all applaud Dick’s Sporting Goods, Walmart, and others in the marketplace for having the courage to act where little is found among political leaders. The youth have it right when they say that the NRA is protecting the rights of gun makers and not the rights of gun owners. Cut up your membership card, no more death and disability for the sake of profit!  We the people demand changes. The NRA has bought lawmakers, we must do it for ourselves. Drop NRA memberships, and boycott businesses who support them. No more death and disability for profit through mass gun violence.

Inaccessible Dallas Texas Part Four

Texas with it's Counties Colorfully Outlined

 

In the previous part, we looked at the legal requirements on election officials where accessibility is concerned under the Americans with Disabilities Act. Now let us turn to what can happen if their defense for not obeying the law is valid. The only defenses available are when the state or local government documents in advance, and can prove, that, using all its available resources, it is too difficult or too expensive to accomplish accessible communication or it would fundamentally alter the nature of the communication or program to make it accessible. Even if one of those defenses applies, the government entity is required to do everything it can to provide accessible communication up to the point where the burden becomes too great. This is a high bar. If a person with a disability is denied equally effective communication in voting, he or she can file a case in court or a complaint to a federal agency. Either way, the discriminating government entity can be required to pay damages for any extra expenses, time, or other burdens the complainant incurred, as well as damages for the harm of being obstructed in accessing the right to vote and of experiencing discrimination. The discriminating agency can also be required to make it’s voting systems accessible, adopt policies to ensure accessibility going forward, and to undertake any other steps necessary to remediate the problem. The discriminating agency can also be required to pay the complainant’s attorneys fees and costs. Finally, and most significantly, under Section 504, the agency can be required to give up its federal funding. How much Federal funding does Dallas get we ask? Are they ready to give it up? So, if a state or local government is providing voter information, voter verification, registration, ballots, or election results via the Internet or information technology, (IT) or if it is receiving information, registration applications, votes, and the like from voters or prospective voters via the Internet or IT, it ignores the accessibility of those communications at its own peril. Following their search for inaccessible poll book technology the Dallas County Elections Department, and Elections Administrator Toni Pippins-Poole has chosen such an inaccessible system and apparently, the political leaders have willingly or unwittingly supported this act of open discrimination. Would it not make more sense to openly discuss accessible IT policy with the disability community and withdraw the decision to purchase inaccessible technology in favor of a new RFP requiring accessibility? Access Ready stands prepared to assist and all it takes is a quick email or phone call to begin the process.

About Access Ready

Access Ready Inc. is a nonprofit cross-disability education and advocacy organization promoting a policy of inclusion and accessibility across information technology through education and best practices. It shall be Policy One of Access Ready Inc. never to be a plaintiff in and/or financially support any legal action or lawsuit related to the accessibility or inaccessibility of any information technology software, hardware or service. Further Access Ready Inc. shall make the results of its technical findings, policy discussions and advocacy efforts available to the public through accessready.org, its social media stream, and other public relations efforts. The Board of Directors of Access Ready has deemed inaccessible information technology to be a clear, growing and present danger to the civic, economic and social welfare of people with disabilities. We would welcome your support.

Inaccessible Dallas County Texas

There are apparently numerous facts that have been raised with the Commissioners, the County
Judge, the Purchasing Department, and the District Attorney documenting potential bias on the
part of Elections Administrator Toni Pippins-Poole acting as a Procurement Professional on
behalf of the County. We will leave it to the press and other discovery investigators to uncover
those facts for the public. We do know that Section 8 of the Dallas County Code of Ethics
requires Impartial Decision Making and Perception.” Section 12 states: Vendors, Procurement
Professionals, and Elected Officials shall maintain high standards of honesty, integrity, and
impartiality throughout the solicitation and contracting process, and shall conduct all contract
and solicitation-related activities in accordance with any governing laws, regulations, and this
Code of Ethics.” In addition, questions must be asked about the procurement of technology for
the election system. Not that new technology is being looked for, but the numbers do not
apparently add up. There are 486 Election Day Poll Sites that include 792 Precincts. In 2016, the
system served 1,112,375 voters and in 2018 that increased to 1,161,328 voters, an increase of
about 49,000. In June 2016, a Request for Proposal (RFP) was released that required 3,000 (three
thousand) iPads. Two years and three months later in September 2018, a new RFP requested
4500 iPads under what turned out to be a six million dollar contract for 3 years of which about
half is hardware. This is after a 49,000 or a 4.4% growth in voters, yet the new RFP looked for a
50% increase in iPads. This would mean about nine iPads per polling place when just two years
and three months earlier about 6 iPads per location was enough. This process must also be
looked at in the light of the number of voters who choose to vote early or by mail. In 2016,
514,581 ballots were cast through Early voting in person, 42,697 ballots were cast through the
mail and 211,666 voters went to the polls on election day. Dallas election administrators argued
at that time that they needed 3,000 (three thousand) iPads to serve 211,666 out of 1,112,375
voters or just over 19% of voters who went to the polls on election day. That is approximately 70
(seventy) users per iPad on election day in 2016. Spread over a 12 (twelve) hour voting day that
gives us about 5.9 voters per hour on each iPad. So are they really arguing that it takes each voter
almost 10 (ten) minutes to check in using the iPad based system? In 2018, 492,980 ballots were
cast through Early voting in person, 42,277 ballots were cast through the mail and 195,486 voters
went to the polls on election day. Dallas election administrators argued in the 2018 RFP that they
needed 4500 (four thousand five hundred) iPads to serve 195,486 out of 1,161,328 voters or just
under 17% of voters who went to the polls on election day. That is approximately 43 (forty-
three) voters per iPad on election day in 2018. Spread over a 12 (twelve) hour voting day that
gives us about 3.6 voters per hour on each iPad. So are they really arguing in this case that it now
takes each voter almost 15 (fifteen) minutes to check in using the iPad based system? Is the
failure rate of iPads that unusually high? Perhaps someone should tell Apple CEO, Tom Cook. Is
it true that Apple has stated in sales meetings that their products should not be used in mission-
critical environments? If so why would such equipment be chosen? Why are so many iPads
running software not designed to be accessible. The manufacturers of the proposed system might
be arguing that the iPad is accessible so therefore their software is. Unless designed to be
accessible to proscribed standards then accessibility will be problematic at best and more than
likely non-existent. Are the actions of Elections Administrator, Toni Pippins-Poole, based on
sound judgment, impartial decision making and perception? Is she acting in accordance with any
governing laws, regulations, and the Code of Ethics? Are her actions based on personal dislikes
and/or an overall discriminatory attitude toward people with disabilities in general? By not
including accessibility requirements she is certainly violating the ADA as governing law which
apparently puts her and her team in what may be a direct contradiction of the Code of Ethics.
Having been informed of the egregious act of discrimination by the Dallas County Elections
Department and Elections Administrator, Toni Pippins-Poole, in not requiring accessibility when
seeking new election technologies, Access Ready decided to see how far this discriminatory
attitude went across the governments of Dallas. To our dismay, we find that not only are they not
requiring accessibility in new technologies but that the online presence of Dallas County, the
Dallas Board of Elections, and the City of Dallas are overwhelmingly inaccessible as well.
Following our standard practice, we are informing the officials of those governments of these
violations along with the major disability organizations at the local, state, and national level.
Access Ready is offering to work with each of the governments to assist them in putting in place
policies designed to foster accessibility and we are waiting on their replies.
About Access Ready, Inc.
Access Ready, Inc. is a nonprofit cross-disability education and advocacy organization
promoting a policy of inclusion and accessibility across information technology through
education and best practices. It shall be Policy One of Access Ready Inc. never to be a plaintiff
in and/or financially support any legal action or lawsuit related to the accessibility or
inaccessibility of any information technology software, hardware or service. Further Access
Ready Inc. shall make the results of its technical findings, policy discussions and advocacy
efforts available to the public through accessready.org, its social media stream, and other public
relations efforts. The Board of Directors of Access Ready has deemed inaccessible information
technology to be a clear, growing and present danger to the civic, economic and social welfare of
people with disabilities. We would welcome your
support.

Access Ready Enviroments

It was just a short year ago that we first asked the question. Since we require that new and
modernized buildings be accessible. Why don’t we require that work places deploy technology
that is accessible thereby creating an access ready environment for employees with disabilities?
Since first asking the question the discussion has grown to include all places of public
accommodation. Without an access ready environment, managers often consider the cost of
accessibility before employing a person with a disability. When they do move forward, there is a
delay before employment can begin, an access ready environment could help.  Access ready is
still a new concept in the information technology world. Just think of the money, time, and
opportunities that will be saved in the long run. It could be a real commitment to information
technology by those entities who talk about employing people with disabilities.  Access Ready,
Inc. is seeking the support of disability, government, and industry leaders to putting an Access
Ready Policy into practice on a voluntary basis and then as a matter of course. Think of the
opportunities that could be created if every place of public accommodation were Access Ready.
Since asking the question for the first time the concept has grown into a national non-profit with
a Board of Directors that represents a sweep of industry leaders from advocacy to technology
development. Experts of many stripes have stepped up to lend their support, talents, and
corporate abilities to the cause. As an organization, it will soon launch access to an online
consumer technology store and a gift shop. To spread the word about the impact that accessible
and inaccessible information technologies have on people with all levels of disabilities. “Access
Ready People” the online magazine will debut later this spring. To provide educational services,
Access Ready Learning, a learning management platform will be coming along as well. Access
Ready, the organization is a nonprofit cross-disability education and advocacy organization
promoting a policy of inclusion and accessibility across information technology through
education and best practices. When formed the first policy put in place by its Board of Directors
was never to be a plaintiff in and/or financially support any legal action or lawsuit related to the
accessibility or inaccessibility of any information technology software, hardware or service.
Further Access Ready shall make the results of its technical findings, policy discussions and
advocacy efforts available to the public through accessready.org, its social media stream, and
other public relations efforts. The Board of Directors of Access Ready has deemed inaccessible
information technology to be a clear, growing, and present danger to the civic, economic, and
social welfare of people with disabilities. In the past few days, Strategy One of Access Ready,
which is meant to educate Business, government, and the nonprofit sector on the need for
accessible information technology through an Access Ready Policy began reaching out to
various government entities across the nation. These communication waves deliver the results of
our website and attached documentation surveys through an invitation to discuss the situation
and develop an Access Ready Policy. The process includes three such invitations spread over
seventy-five days with three more to follow on the legal front to negotiate a structured settlement
if the Subject Customer so chooses that path. We invite you to visit accessready.org which, like
many websites, is an ever changing work in progress. Watch as we grow and the idea of Access
Ready Environments becomes policy.

Inaccessible Dallas County Texas

Inaccessible Dallas Texas Part 2

Douglas George Towne

Chair and Chief Executive Officer

Access Ready Inc.

It is the duty of government to require accessibility so that developers will provide it in their goods and services. Even without this incentive one major company who understands the law has made an impressive investment in and advances across accessible election technologies to support Federal and State accessibility requirements. Yes, in the interest of full disclosure that the company VOTEC Corporation is one among many Founders of Access Ready Inc, but that does not change the facts in the case of inaccessible Dallas, Texas. The counties overt act of discrimination by not requiring accessibility and refusing to even look at a fully accessible product is what has brought Dallas County’s denial of disability rights to our attention. VOTEC recognizes the need and requirements that support accessibility, while inaccessible Dallas, Texas apparently does not. Access Ready does not endorse or recommend any companies product or services. We only seek that government requires accessibility across all information technology so that all companies will offer accessible innovations. This means that the argument that requiring accessibility was pointless because it does not exist in the new technologies that Dallas election officials are seeking is a straw man defense at best. Great pioneering strides have been made in the abilities to provide private and independent access to those citizens with sensory, mobility, and cognitive disabilities. We find that the technology necessary is openly available and waiting to be used to support the civil rights of people with Disabilities. Using the seven accessibility standards of Section 508 of the Rehabilitation Act of 1973, as amended, as a baseline election technology developers have broken down previously thought to be insurmountable communication barriers. The barrier that is yet to be eliminated is the attitudes of those in power like Elections Administrator, Toni Pippins-Poole, who is apparently perpetuating these attitudes. By not requiring accessibility in their RFP she may have essentially fooled the members of the Election User Community Evaluation Group and ultimately Dallas voters into believing that accessibility in the emerging election technology market that includes poll books does not exist. If withholding information from the Election User Community Evaluation Group does not compound the perversion of the very civil rights of citizens with disabilities, then we do not know what does. This situation also raises questions about the impartiality of the procurement process. It begs the question why Elections Administrator, Toni Pippins-Poole, wouldn’t want to look at every potential technology available which makes the election process more independent, private and accessible. Access Ready is reviewing the websites of the City, County and Elections Department to see how far this discriminatory attitude goes.

About Access Ready

Access Ready Inc. is a nonprofit cross-disability education and advocacy organization promoting a policy of inclusion and accessibility across information technology through education and best practices. It shall be Policy One of Access Ready Inc. never to be a plaintiff in and/or financially support any legal action or lawsuit related to the accessibility or inaccessibility of any information technology software, hardware or service. Further Access Ready Inc. shall make the results of its technical findings, policy discussions and advocacy efforts available to the public through accessready.org, its social media stream and other public relations efforts. The Board of Directors of Access Ready has deemed inaccessible information technology to be a clear, growing, and present danger to the civic, economic, and social welfare of people with disabilities. We would welcome your support.

Inaccessible Dallas Texas

Inaccessible Dallas Texas

Part 1

Douglas George Towne

Chair and Chief Executive Officer

Access Ready Inc.

 

This year the home of the free will celebrates the twenty-ninth anniversary of the Americans With Disabilities Act (ADA). https://www.ada.gov/. Yet from sea to shining sea we find accessibility not to be commonplace, but rather an issue from the smallest to largest businesses, governments, and nonprofits among us. This article is broken into four parts because the seriousness of the subject requires the facts of the situation across Inaccessible Dallas County. (https://www.dallascountyvotes.org/ , https://www.dallascounty.org/, https://dallascityhall.com/ )

As the world has turned and spawned the new technologies that now drive the engines of our civic, social and economic lives the ADA’s promises of inclusion are being overlooked and perhaps in some cases intentionally left out.

The potential for widespread accessibility across information Technology (IT) is being thwarted by attitudes best left to the dust bins of history. Yes, there are issues with being able to shop online, apply for employment, and even be productive on the job for many people with disabilities frustrated by inaccessible websites, software programs, and new IT products and services of all kinds. But we must address the most egregious assault on modern-day liberty in our civic lives.

Title II of the ADA covers all state and local government activities, was enacted in 1990 and Section 504 of the Rehabilitation Act, covering all recipients of federal funding, has been in place since 1973. These laws are unequivocal: they require covered entities to ensure their public communications are equally effective for people with disabilities as for people without disabilities. The Department of Justice has made clear that Title II requires all services, programs, and activities of public entities, including those provided through the Internet or other technology, to be accessible.

Great bastions of outwardly democratic and inclusive ideals like Dallas County in the State of Texas are openly flaunting the civil rights of people with disabilities and the laws that protect them.

Although major leadership organizations like the American Council of the Blind, National Federation of the Blind and others have taken public positions requiring accessibility across information technologies including emerging systems like poll books Inaccessible Dallas County has chosen not to require goods and services to be accessible. It is not just the city, county and election websites that are inaccessible, but they have taken even greater steps to grow inaccessibility and discrimination.

In a request for proposals (RFP) (2018-049-6742.RFP.Election.electronic poll book.MI) issued by the Dallas County Elections Department, Elections Administrator Toni Pippins-Poole apparently refused to require that new poll book systems be accessible to people with disabilities.

Incredibly we have been given to understand that when this oversight was pointed out Elections Administrator Toni Pippins-Poole seemingly refused to even look at accessible products or revise the RFP.

Access Ready and others are continuing to review this situation, more to follow.

 

About Access Ready

Access Ready Inc. is a nonprofit cross-disability education and advocacy organization promoting a policy of inclusion and accessibility across information technology through education and best practices.

It shall be Policy One of Access Ready Inc. never to be a plaintiff in and/or financially support any legal action or lawsuit related to the accessibility or inaccessibility of any information technology software, hardware or service.

Further Access Ready Inc. shall make the results of its technical findings, policy discussions and advocacy efforts available to the public through accessready.org, its social media stream, and other public relations efforts.

The Board of Directors of Access Ready has deemed inaccessible information technology to be a clear, growing and present danger to the civic, economic and social welfare of people with disabilities.

We would welcome your support.

Cyber Security

Accessibility and Cyber Security
The inclusion of accessible information technology is the mission of Access Ready, but no one can say
that cybersecurity is not the concern of all of us who exist in our online and device connected internet of
everything in the world. Almost every day the cybersecurity features that are put in place to build our
trust are breached again and again. As we concern ourselves with the accessibility of websites, software,
and hardware we often find access needs coming up against those same security features designed to
protect us. Captcha images and the lousy audio files that try to make them accessible is perhaps the
most ubiquitous example of the issue. Those of us concerned with accessibility do not or should not, in
any case, oppose cybersecurity measures. We want to be protected as well. It does appear though that
security measures are developed without accessibility being taken into consideration. This should be of
no surprise since the majority of new technologies are developed today without those same
considerations. We are not suggesting that security is not more or less as important as accessibility, but
that it should be considered equally in the development and implementation process of new
technologies. Perhaps a larger concern is that the buyers, users, and managers of information
technologies often site security as a reason for not providing accessibility. This response is often given
without investigation and as a way to shut down the subject and move on. It is the age-old cry of the
oppressor, internal security which is another way of saying, you cant make us. Knowing that this
debate will come up as we work to advance the Access Ready Policy, we have looked for the best and
brightest to advise us. A cybersecurity qualified leader with a clear understanding of and development
experience in technological accessibility. Admittedly finding a person with credentials in both
cybersecurity and accessible information technology is a big ask. Big because it deals with two major
areas of concern in the development and implementation process and few people have a background in
both. To see both issues and find understanding and compromise it takes problem-solving skills from the
point of view of both disciplines and the ability to break down the problem to its basic elements. It also
takes the ability to understand a security excuse for not providing accessibility when such a
smokescreen is used. Access Ready Inc is pleased to welcome Matthew Michaelis to its Board of
Directors as Chair of Cyber Security. Matthew comes to us from a family of true technology and scientific
geniuses with a long history of contributions to accessibility and technological advancement. As Access
Ready begins to advance its global Access Ready Policy goals we want to be sensitive to cybersecurity
issues, but also need to help find a path through those issues to access solutions. It is our intention not
just to be a critic, but to equally offer problem-solving assistance and education. The advocate who
pounds the table demanding “Fix It” but has no idea of the real issue or how to resolve it has already
lost. Access Ready is not that kind of education and advocacy organization. Assuring accessible
information technology requires not just an understanding of the law that supports it, but what the
technical requirements, limitations and possibilities are as well.

Access Ready Business

American Flag with blue sky and white clouds

Access Ready Business
When the Americans with Disabilities Act (ADA) was enacted in 1990, the Internet as we know it
today did not exist as the ubiquitous marketplace for information, goods, and services. Neither did
the information technology-driven workplace. Today, the ADA's promise that individuals with
disabilities would be able to participate in all aspects of American, civic, and economic life will be
achieved in today's technologically advanced society depends on businesses understanding that their
success, as well as their legal obligations, depending on their information technology systems being
accessible.
Today, the Internet and information technology (IT) plays a critical role in the daily, personal,
professional, and business life of Americans. More and more, the Internet and IT are central to the
workplace and to how business does business.
Access Ready Inc. is a nonprofit cross-disability advocacy organization promoting a policy of
inclusion and accessibility across information technology through education and best practices. It
shall be Policy One of Access Ready Inc. never to be a plaintiff in and/or financially support any
legal action or lawsuit related to the accessibility or inaccessibility of any information technology
software, hardware or service. Further Access Ready Inc. shall make the results of its technical
findings, policy discussions and advocacy efforts available to the public through accessready.org, its
social media stream, and other public relations efforts. The Board of Directors of Access Ready has
deemed inaccessible information technology to be a clear, growing, and present danger to the civic,
economic, and social welfare of people with disabilities and we would welcome your support.
Increasingly, many businesses covered under Title III of the (ADA) are using websites to market
themselves and to provide direct access to their goods, services, and activities. To support these
activities the internal or employee facing operations of the business is also driven by IT. Without
addressing the accessibility of both their internal and external IT, businesses risk losing out on the
approximately 20% of American customers and employees who have disabilities.
Access Ready policy advances accessibility across the web and information technology.
Many business websites and other IT are difficult or impossible for individuals with disabilities to
use because the technology does not interface with the adaptive technology used by people with
disabilities. Being unable to access websites and information technology puts individuals with
disabilities at a great disadvantage in today's society and starves businesses of potential customers
and potential workers.
Like curb ramps to sidewalks, building bridges between the standard IT and the assistive technology
used by people with disabilities is accomplishable and necessary to allow people with disabilities to
access the systems that are foundational to our workplaces and civic spaces. Also, like curb ramps,
these bridges benefit everyone – with and without disabilities. And including accessibility features,
like including curb ramps, from the beginning means they are affordable and seamless. The Access
Ready Environment is one where website and information technology accessibility is designed from
the outset and is not an afterthought as it is so often today. Businesses that embrace an Access
Ready policy can accomplish this over a five-year budget cycle without real difficulty.
For many, it is now difficult to imagine a world without the unprecedented access to information
that the web provides. Businesses large and small are increasingly providing customers access to

goods and services through their websites. Electronic commerce, or e-commerce, often offer
consumers a wider selection and lower prices than traditional brick-and-mortar” storefronts. For
individuals with disabilities who experience barriers to their ability to travel, the Internet may be
their only way to access certain goods and services. The availability of these services online not only
makes life easier for customers but allows businesses to operate more efficiently and cost-
effectively, as it reduces the overhead costs of retail locations and on-site sales staff. Businesses to
ignore people with disabilities as a market for goods and services is a tremendous mistake. This
minority now represents twenty-five percent of the general population according to the Centers for
Disease Control. The disability community represents three hundred billion dollars plus a year in
disposable income.
Further, why would it be acceptable not to provide access to online goods and services to people
with disabilities? No other minority would stand for such limitations and society would not allow
such a thing. It is a fact that the Internet is dramatically changing the way that businesses serve their
customers. More and more customers with disabilities are asserting their rights to access through
litigation. By adopting an Access Ready policy business can achieve and maintain accessibility on
the web and through their IT.
People with disabilities also represent a vast untapped talent pool ready to join the workforce.
Accessible internal and back-office IT opens up many employment opportunities. Given the
competition for good employees in today’s economy, the availability of qualified unemployed and
underemployed workers with disabilities, the supportive services and accommodations offered by
state and federal tax-payer funded programs, such as Vocational Rehabilitation, and the tax and
business incentives in place for employing people with disabilities, it is foolish for business not to
seek out qualified individuals with disabilities. Making internal and external IT accessible is the
foundation that makes it possible for companies to increase their customer base and their employee
pool.
What is needed is the adoption of an Access Ready policy that applies to IT across the economy. An
Access Ready policy establishes a commitment, a framework, and clear roadmap to achieving
accessibility, increasing customers, and improving employee skill and productivity, as well as
fulfilling legal civil rights obligations.

Business Websites and the Americans with Disabilities Act

Civil Rights Attorney Eve Hill wearing a blue suit near office window

Public Access

Title III of the Americans with Disabilities Act (ADA), covering all places of public accommodation, was enacted in 1990. The ADA requires public accommodations to ensure their public communications with people with disabilities are effective.  Public accommodations include twelve broad types of businesses, such as hotels, restaurants, movie theaters, sales establishments, service establishments, museums, private schools, and social services.  Courts have differed regarding whether internet-only businesses are covered by Title III.  However, the Department of Justice has stated that, if a business falls into one of the twelve categories of “public accommodation,” its web-based communications are required to be effective for people with disabilities.

Effective communication generally means people with disabilities can access or acquire the same information, engage in the same interactions, and enjoy the same products and services that a business’ communications offer its sighted participants with substantially equivalent ease of use.  All types of communication are covered – including internet- and information technology (IT)-based communication.  To be effective, accessible communications must be provided in a timely manner, and in such a way as to protect the privacy and independence of the individual with a disability.  These requirements apply to both communications the business makes to members of the public and communications it receives from the public.

The only defenses available are when the business can prove, that, using all its available resources, it is too difficult or too expensive to accomplish accessible communication or it would fundamentally alter the nature of the communication or program to make it accessible.  Even if one of those defenses applies, the business is required to do everything it can to provide accessible communication up to the point where the burden becomes too great.

In addition to their own online communications, businesses may be responsible for the accessibility of content and IT tools used on their websites, when that content or tool is necessary to access the business’ goods, services, facilities, privileges, advantages, or accommodations.  Thus, for example, when a business uses a third-party online system for customers to pay, place orders, or ask questions, the business needs to ensure that third-party system is accessible.

If a person with a disability is denied effective communication, he or she can file a case in court or a complaint to the Department of Justice.  Either way, the discriminating business can be required to make its communications accessible, adopt policies to ensure accessibility going forward, and to undertake any other steps necessary to remediate the problem.  The discriminating business can also be required to pay the complainant’s attorneys’ fees and costs.

So, if a business is providing information, goods, services, programs, or activities to the public via the internet or IT, or if it is receiving communications from the public via the internet or IT, it ignores the accessibility of those communications at its own peril.

In the bygone era of just paper-and-pencil documents and in-person or telephone communications, equally effective communication generally meant providing large print, taped texts, and Braille formats for documents, and using sign language interpreters, relay services, and captioning for meetings and telephone calls.  These are known in the ADA as auxiliary aids and services.  As we have entered the age of internet- and IT-based communication, auxiliary aids and services have also moved online.  Nowadays, most people with vision disabilities have access to screen reader software, magnification software, or Braille displays that can translate a web page or electronic document into large print, computerized speech, or Braille.  A website can, therefore, be made accessible to blind and low vision people simply by ensuring it will work with such assistive devices and software programs, that certain standards are met for images and other visual information, and that input and navigation can be achieved through keyboard commands as well as mouse commands.  Now, captioning for pre-recorded video and audio information is readily available for people with hearing disabilities.  A video or audio presentation or meeting can be made accessible to people who are deaf or hard of hearing simply by providing captions online.  By making a website or online document or video accessible (i.e., screen readable, usable without a mouse, and captioned), a business can make its communications accessible without having to create separate accessible versions.  The regulations implementing the ADA provide that accessible electronic and information technology is a type of auxiliary aid or service required by Title III.

The World Wide Web Consortium (W3C), an international group that sets standards in various technology contexts, has developed a consensus standard for accessibility of websites and other communications technologies – the Web Content Accessibility Guidelines (WCAG).  Version 2.1 is the current version, although Version 2.0 is still widely accepted.   Level AA of these guidelines usually results in accessibility to users with vision, hearing and speech disabilities.  International governments have adopted the WCAG standards, as has the U.S. government for its own accessible technology, and the U.S. Department of Transportation has adopted WCAG as the standard for accessibility of airline websites and kiosks.  While the ADA does not provide a specific standard for web accessibility, the Department of Justice and other federal agencies, as well as courts, have found WCAG 2.0 Level AA to meet the Title III’s effective communication requirement.

If a website or online document or video is not accessible, however, the business will have to maintain a separate system for communicating with people with disabilities.  That separate accessible system, whether it is a staffed telephone line or some other means, is likely to be expensive.  Worse, such a separate system is likely to violate the ADA’s requirement of effective communication.  A staff-based substitute for a website, for example, would need to be available 24 hours a day, 7 days a week, 365 days a year, just as the website is.  The staff would need to be prepared to navigate the entire website, orally describe all the information, and carry out transactions for a blind person.  The staff would need to be prepared to transcribe all the speech and describe all the audio content of videos and audio programming.  And the staff would need to be prepared to accurately input any information the person with a disability wanted to communicate back to the business.  All of this would need to be timely, accurate, and complete, while not placing additional burdens on the person with a disability and while maintaining their privacy and independence.

Accessible technology does not happen automatically.  To avoid the expensive, noncompliant fallback system of access, businesses and their web designers, technology vendors, content creators, and communicators, must incorporate accessibility as a matter of course, not as an exception, both when developing or purchasing new technology or content, and as part of a planned remediation strategy.

Employee Access

Businesses have legal obligations, not only to the public, but also to their employees and prospective employees.  Title I of the ADA applies to the employment activities of businesses with 15 or more employees.  In addition, businesses that hold government contracts are covered by Section 503 of the Rehabilitation Act, which requires affirmative action to employ people with disabilities.

These laws do not specifically require businesses to ensure their employee-facing technology is always accessible.  However, in any work environment in which technology is an important tool, an employer that does not ensure its technology is accessible will almost certainly fail to meet its legal obligations.

A business must provide reasonable accommodations to ensure its employees with disabilities can perform the essential functions of their jobs, unless doing so constitutes an undue hardship in light of all its available resources.  The employer must prove any claim of undue hardship and must provide any accommodations that do not rise to the level of undue hardship.  Therefore, if a business uses existing technology that is inaccessible, it theoretically has two options – 1) make the technology accessible or 2) if it is too expensive or difficult to make the technology accessible, provide a work-around for the employee with a disability (e.g., a staff person or contractor to act as a reader, scribe, or interpreter).  If, on the other hand, the employer has purchased or developed employee-facing technology since the ADA was enacted, it is less likely to be able to succeed in making an undue hardship defense.  That is because, if an accessible version of the technology was available or it was not difficult to make the technology accessible when it was developed, then it would not have been an undue hardship to use accessible technology.  The cost of remediating a new technology should have no bearing if the technology could have been accessible from the beginning.

In addition, work-arounds for inaccessible technology are inefficient, expensive, and often fail to provide equal access for employees with disabilities.  For example, when an online database is readily available on-demand to employees without disabilities as they perform their duties, but an employee with a disability must await the availability of a part-time reader in order to access it, the employee with a disability is being denied an equal opportunity to perform his or her job.

Employees with disabilities are not merely entitled to the opportunity to perform the essential functions of their jobs, with or without reasonable accommodations, but are entitled to equal access in all the terms, conditions, and privileges of employment.  Such terms, conditions, and privileges include the training, interoffice communication, networking, and other opportunities offered to nondisabled employees.

 

Eve L. Hill

Inclusivity Consulting