Accessibility has been in the news recently, both in the legal and technology fields. Earlier this month, the Supreme Court of the United States (SCOTUS) declined to consider a case with the following issue (via SCOTUSblog):
Whether Title III of the Americans with Disabilities Act requires a website or mobile-phone application that offers goods or services to the public to satisfy discrete accessibility requirements with respect to individuals with disabilities.
The Americans with Disabilities Act (ADA) became effective in 1990. In the United States, “acts” and “bills” are generally – though not always – very long. For clarity, they are divided into titles and subsections as congressional bills, and chapters and subchapters once made part of the U.S. Code.
When published by congress, Title III of the ADA was “Public Accommodations and Services Operated by Private Entities.”
In law, you will often see specific definitions of things. Sometimes they have the common meaning you already know, and sometimes they don’t. Setting out the definitions is important so that everyone is referring to the same thing when discussing the law.
For example, the “public accommodation” in the title name refers to privately-owned spaces whose activities “affect” travel, trade, traffic, commerce, transportation, or communications. This, then, includes spaces that offer “goods” (things) or “services” (performance of an activity).
“To the public” means to everyone, generally.
Here, “discrete” means distinct or separate – so, think of a list of requirements. Do not confuse this with “discreet” which is the word used when someone is careful to avoid causing offense or harm.
“Accessibility requirements” are the things that are needed to make something able to be used by anyone – in buildings, this can be things like a ramp for someone who uses a wheelchair, or signs in braille for someone who is blind.
Does the part of the ADA
that deals with public spaces and services
operated by private people or groups (that is, not the government)
websites or phone apps
that offer goods or services
to meet distinct accessibility requirements?
When SCOTUS refuses to hear a case, we are then left with the lower court’s opinion re: what the law should be. The lower court is the U.S. Court of Appeals from which the appeal to SCOTUS was made. In this case, that’s the U.S. Court of Appeals for the Ninth Circuit. (The United States is divided into big chunks called “circuits” which are made up of different courts. The Ninth Circuit is made up of western states and territories.)
The court states that the ADA is intended “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” We don’t want people to be limited to enjoying certain things based on whether they have certain abilities. But what about Domino’s?
Domino’s is a chain of pizza restaurants, so they are privately owned (not owned by the government) and open to the public (anyone can stroll in for pizza), and they provide goods (pizza). To provide pizza, they participate in commerce – they exchange money, either as cash or by using credit cards. Domino’s is then a public accommodation which would be subject to the ADA – and that’s good! We want pizza to be available to everyone who wants it om nom nom.
But what about websites? And apps? Those aren’t at the store! They exist in space! In the interwebs! The tubes of cats!
Correct, but the court notes that the requirement to “provide auxiliary aids and services to make visual materials available to individuals who are blind . . . applies to the services of a place of public accommodation, not services in a place of public accommodation.” This means that the website and app are included, because they are services provided by Domino’s to help them conduct their business.
The court examines this question, as Domino’s claimed they didn’t have proper notice of just what exactly they were supposed to do to make their website and app ADA compliant.
The court acknowledges that a prior opinion concerning “movie-theater accessibility for wheelchair-bound patrons . . . held that requiring AMC [a movie-theater company] to reconfigure theaters built before DOJ [the Department of Justice] announced its interpretation of the ambiguous regulation would violate due process.”
But, the court said, that’s not what’s happening here. The person in this case was not asking for Domino’s to be held responsible for violating the Web Content Accessibility Guidelines (WCAG) 2.0, but for not complying with § 12182 of the ADA, and Domino’s certainly had notice of what is in the ADA. Additionally, “Domino’s does not allege that its website or app were created prior to (or never updated since) 1996, when DOJ announced its position that the ADA applies to websites of covered entities.” So, it turns out, it’s actually not news that websites of “covered entities” like Domino’s need to be ADA compliant!
Domino’s also said it wasn’t fair to require them to comply with WCAG 2.0 because they are “private” and “unenforceable.” The court notes that Domino’s wasn’t being sued for not complying with WCAG 2.0, but that the person involved “merely argues – and we agree – that the district court can order compliance with WCAG 2.0 as an equitable remedy if, after discovery, the website and app fail to satisfy the ADA.”
There is a discussion in the opinion about how “as a general matter, the lack of specific regulations cannot eliminate a statutory obligation.” The court previously held “that the ADA’s regulations did not ‘suggest that when technical specifications do not exist for a particular type of facility, public entities have no accessibility obligations.’” This is also good – it makes the law flexible as we continue to develop new places and ways of doing business with each other.
Essentially, just because specific rules didn’t exist, that didn’t mean Domino’s didn’t have to make their website ADA compliant per the 1996 DOJ announcement. And WCAG 2.0 are a good place to start, if not “official” or handed down by the government.
At the end of the opinion, the court says that it would be up to the district court (the court below it) to decide whether the Domino’s website and app were ADA compliant.
Well, if we didn’t know before, we know from reading that opinion that websites and apps for companies that are subject to the ADA are themselves required to be ADA compliant. This case also showed that at the end of the day, paying to make things available to everyone is good business – it's a lot more expensive to fight for the right to discriminate.
Instead of getting lost in the weeds and trying to decide what websites exactly need to be accessible – it is now (and was) good practice to become familiar with WCAG 2.0 and start building accessibility into our products. If you’re doing this already – great! If not, it’s not too late to learn.
You’re going to make mistakes, you’re going to need to revisit old code, and you’re going to have to look things up – but you’re also going to be building a better internet. A lot of us claim that the internet is for everyone, and building to WCAG 2.0 will help make that claim true. If accessibility issues don't affect you now, we’re all getting older – build the internet you want to have when you're telling kids to get off your lawn.