5th European eAccessibility Forum
Benefits and costs of e-accessibility

28/03/2011, 9:00 - 18:00
Cité des Sciences et de l'Industrie - 30 Avenue Corentin Cariou 75019 - Paris, France

 
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Appendix 3: Litigation & the Business Case for e-Accessibility in the United States

Cynthia Waddell (California, USA)
the International Center for Disability Resources on the Internet (ICDRI)
Cynthia.Waddell@icdri.org

Speaker's information


Cynthia Waddell is the Executive Director and Law, Policy and Technology Subject Matter Expert for the International Center for Disability Resources on the Internet (ICDRI).  She also leads ICDRI’s Accessibility Oversight Consulting Services for clients in government, academia and the business community to further ICDRI’s mission to remove electronic and information technology barriers and promote equal opportunity for all.

In the world of accessibility, Cynthia Waddell is an internationally recognized expert in the field of information and communications technology (ICT).  She is the author of the first accessible web design standard in the United States in 1995 that led to recognition as a best practice by the federal government and contributed to the eventual passage of legislation for Electronic and Information Technology Accessibility Standards (Section 508).  

 In the international area, Cynthia Waddell serves as an invited accessibility expert for the U.S. Department of State International Telecommunications Advisory Committee.  She previously served as an invited accessibility expert for the US Delegation at the World Telecommunications Policy Forum in 2009 and participated on the U.S. Delegation for the 2010 International Telecommunications Union (ITU) Plenipotentiary Conference held in Guadalajara, Mexico.

 

Summary


Litigation & the Business Case for e-Accessibility in the United States

  1. I.              Legal Framework
    1. Section 504 of the 1973 Rehabilitation Act was the first disability civil rights law to be enacted in the United States. It prohibits discrimination against people with disabilities in programs that receive federal financial assistance, and set the stage for enactment of the Americans with Disabilities Act (ADA).  Section 504 works together with the ADA to prevent discrimination against children and adults with disabilities that occurs through exclusion and unequal treatment in schools, jobs, and the community. After Congress enacted the law, enforcement regulations were not forthcoming.  As a result, in 1977 a sit-in, along with demonstrations in San Francisco and Washington DC, changed the course of civil rights history, and resulted in the signing of the 1977 Health, Education, and Welfare (HEW) regulations implementing Section 504.
    2. The Americans with Disabilities Act of 1990 was the first civil rights law extending non-discrimination provisions to the private sector.   It is a civil rights law that prohibits discrimination solely on the basis of disability in employment, public services and accommodations from the private sector. It also formally established Relay Services for persons with hearing and speech disabilities.
    3. Section 508 of the Rehabilitation Act of 1973 was strengthened with the passage of the Workforce Investment Act of 1998.  A Federal information and communications technology (ICT) procurement law with a civil rights twist, it directs the U.S. Access Board to promulgate Federal Electronic and Information Technology Accessibility Standards.  It prohibits the federal government from procuring information and communications technology that is not accessible.  The law applies to all Federal agencies whenever they develop, procure, maintain, or use electronic and information technology. Federal agencies must ensure that this technology is accessible to employees and members of the public with disabilities to the extent it does not pose an "undue burden.”  Although Section 508 covers the accessibility of Federal pages on the Internet or the World Wide Web, it does not apply to web pages in the private sector.  Persons with disabilities may file an administrative complaint against the Federal agency for non-compliance or can file a civil action in court.
    4. 21st Century Video and Communications Accessibility Act was enacted in October 2010 and establishes new safeguards for disability access to ensure that people with disabilities are not left behind as technology changes and the United States migrates to the next generation of Internet based and digital communication technologies.

The new law will make it easier for people who are deaf, blind or have low vision to access the Internet, smart phones, television programming and other communications and video technologies. The law will also make sure that emergency information is accessible to individuals who are blind or have low vision. In addition, $10 million per year will be allocated from the Interstate Relay Service Fund for equipment used by individuals who are deaf-blind.  Within one year the Federal Communications Commission will issue regulations governing the filing of complaints by individuals with disabilities as well as enforcement procedures.

  1. Business Case to Comply

Entities covered under these disability rights laws generally seek to comply with accessibility in order to minimize legal risk.   Legal risk can involve the cost of litigation as well as the cost to conform to settlements relating to the removal of e-Accessibility barriers.  Under the ADA, the plaintiff in an employment case has extensive remedies available and may recover lost wages and equitable relief including recovery of future wages, compensatory damages and punitive damages.  These remedies are available to both employees and job applicants under the ADA Title I Employment provisions.  Under the ADA, the complainant is required to be a U.S. resident and is not required to be a U.S. citizen. 

 

In general, the remedies available for all other non-employment types of ADA and Section 504 cases direct that the defendant fix the problem.  This means that the cost of litigation to defend against a valid discrimination complaint tends to result in settlement agreements to resolve the issues and fix the electronic barrier.

However, in certain cases, the USDOJ can seek monetary damages on behalf of the public.  The non-discrimination statutes authorize the department to bring a lawsuit where there is a pattern or practice of discrimination in violation of ADA Title III, or where an act of discrimination raises an issue of general public importance.

 

  1. II.            Litigation for e-Accessibility
    1. Walt Disney Company Websites

Most recent litigation on accessible web involves the Walt Disney Company theme parks and website.  Filed in September 2010, the plaintiffs moved for class action status in February 2011 on behalf of people with visual disabilities.  Complaint includes allegations that the Disney affiliate websites, Disney Online and Walt Disney Parks and Resorts Online, contain video and audio trailers that cannot be turned off by people who cannot use a mouse and that the websites contain Flash content that is not accessible.  Complaint seeks compliance with the ADA and other disability rights laws to make the websites accessible to them. 

 

  1. Kindle eBook litigation against U.S. Universities

On 25 June 2009, the National Federation of the Blind (NFB) and the American Council of the Blind (ACB) jointly sued Arizona State University on behalf of students with visual impairments over the university’s use of electronic textbooks read through Amazon’s Kindle DX.  The suit was filed to prevent the university from deploying the Kindle DX electronic reading device as a means of distributing electronic textbooks to all students.  Although the Kindle DX has text to speech features, it was inaccessible to individuals who are blind.  Plaintiffs alleged that the university’s use of Kindle DX for textbooks violated Section 504 of the Rehabilitation Act and Title II of the ADA.

Although the Kindle features text to speech technology that reads text out loud, the menus are not accessible even though technology exists for accessible menus.  Moreover, users with visual disabilities cannot access many of the other Kindle DX features such as the ability to directly download books, add bookmarks, take notes, highlight text, look up word definitions and search online libraries. 

Additional complaints were filed against five other institutions of higher education for deploying the Kindle DX as part of a pilot project to assess the role of electronic textbooks and reading devices in the classroom. The NFB and ACB filed complaints with the Office for Civil Rights of the U.S. Department of Education (USDOE) and the Civil Rights Division of the U.S. Department of Justice (USDOJ) and called for investigations of the following higher education institutions: Case Western Reserve University, the Darden School of Business at the University of Virginia, Pace University, Princeton University, and Reed College. The complaints alleged violations of the ADA and Section 504 of the Rehabilitation Act.

Subsequently the higher education institutions settled with the USDOJ and the settlements contained number of common themes.

First, the college will not purchase, promote, recommend or require a Kindle DX or any other dedicated electronic book reader for use by students unless the device is fully accessible or a reasonable accommodation or medication can be provided.

The settlement specifically called out the inaccessibility of the Barnes and Noble nook and numerous models of the Sony eReader.

The USDOJ also defined what is meant by a fully accessible eReader:  An electronic book reader is fully accessible if all uses of the device that are available to individuals without disabilities are available to individuals with visual impairments and in a manner equally as effective.

The USDOJ reinforced the ADA and Section 504 view that a reasonable accommodation or modification for students with visual impairments is to be determined on a case-by-case basis.

The USDOJ set forth in the settlements a number of factors for determining the accommodation or modification for students with visual impairments:

On 13 January 2010, USDOJ Assistant Attorney General Thomas Perez noted in his press release that “Advancing technology is systematically changing the way universities approach education.  We must be sure that emerging technologies offer individuals with disabilities the same opportunities as other students.”  See www.justice.gov/opa/pr/2010/January/10-crt-030.html  

Subsequently a joint letter by the USDOJ and the USDOE was sent to all college and University Presidents in the U.S. on 29 June 2010 that made it clear that the settlements were not just targeting Amazon, the maker of the Kindle, but the growing eBook reader industry.

  1. Other Accessible Web Litigation (To be discussed if Time Allows)
    1. Darla Rogers v. State of Florida (Employment/Section 508 ICT)
    2. National Federation of the Blind v. Small Business Administration
    3. Boggs v. LA County Metro
    4. CVS Web Accessibility Agreement
    5. NFB Section 508 Complaints against various Federal Agency Websites

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