What do Domino’s Pizza, pop superstar Beyoncé Knowles and the streaming giant Hulu have in common?
All have faced legal action in recent years for allegedly violating the Americans with Disabilities Act — but none stand accused of failing to build wheelchair ramps or install handrails. Instead, it is the companies’ virtual presence from which patrons with disabilities say they feel excluded.
Members of the National Council on Disability had little precedent for such regulations while drafting the ADA in 1990, but with the evolution of the internet, such legal action has become more prominent, said Dana Barton, director of the Rocky Mountain ADA Center in Colorado Springs.
“[The ADA] is a law that was written for the world 30 years ago and, unfortunately, technology is moving faster than we can have regulations passed,” Barton said.
In 2019, business owners would do well to treat their virtual presence as a physical place, as that is the stance that the courts system appears to have taken, said Geoff Ames, executive director of Meeting the Challenge Inc., a national for-profit consulting firm that works to increase access for people with disabilities.
“Just because the ADA did not conceive of the World Wide Web as being a place where we would conduct billions of dollars of business, [that] does not mean that the business that is conducted there can discriminate against people with disabilities,” Ames said. “[The courts] are essentially saying, ‘You’re conducting business, you’re involving an interstate commerce, and therefore the law was intended that you should not be discriminating against individuals with disabilities.’”
The federally funded Rocky Mountain ADA Center, which serves six states — Colorado, Utah, Montana, Wyoming, North Dakota and South Dakota — is operated by Meeting the Challenge through a grant from the National Institute on Disability, Independent Living and Rehabilitation Research.
ADA staffers field and answer questions about ADA compliance issues, while MTC helps clients identify barriers to program access — physical, procedural and policy — and offers guidance on how to eliminate those barriers, Ames said.
“The original intent [of MTC] was to use technology to find ways of making life more accessible to people with disabilities,” Ames said. “It seems like we’ve almost come full turn on that, because technology seems to be one of the critical issues of implementing the ADA at this point in time.”
Ironically, many of the same strides technology has made for people with disabilities have in turn been flipped and used as a way to exclude them, Ames said.
“[At] a public meeting like a city council meeting, before the internet, you might have had a closed-circuit TV, and people could observe it from afar, but they really couldn’t interact and participate,” Ames said. “Now we stream those events, but if you stream those events and you don’t put video descriptions and captions and allow people to interact by submitting questions in text or email, then you really haven’t resolved the condition that was preventing people from involving themselves in those meetings in the first place.”
The Web Content Accessibility Guidelines, Version 2.0, Level AA, serve as informal regulations for ADA enforcement, but those guidelines do not explicitly spell out what ADA-compliant web content looks like, Ames said.
“The Department of Justice has consistently stated that the absence of regulations does not serve as a basis for noncompliance with the law,” he said.
For a website to be accessible to disabled people, the content must be coded so that screen-reading software can convert the words to an audio translation, and video that appears on a website must include audio descriptions for the deaf, according to a Los Angeles Times article published in November 2018.
Also, all interactive functions must be operable through keyboard commands for people who can’t use a mouse, the LA Times reported.
The Hooters restaurant chain was sued in 2017 even after agreeing to fix its website as part of a settlement of a previous lawsuit, according to the LA Times. A federal appeals court ruled that Hooters remained vulnerable to lawsuits until it fixed the website under the previous lawsuit settlement.
Also, the American Council of the Blind announced in November 2018 that it had reached a settlement with Hulu to make the streaming service’s website and software app more accessible to blind users.
That includes factors like color contrast, font size, audio descriptions, video captioning, and the option to filter those capabilities based on which accommodations users need for their streaming services, Barton said. WebAIM, a nonprofit that provides online accessibility solutions for people with disabilities, is a good jumping-off point to check for cracks in a company’s online ADA compliance, but it all starts in the development stage, she said.
“For example, our website for the ADA Center — if I go in and post a blog post and a picture, I cannot move forward on the back end without writing the alt text. This is how he’s developed it for me,” Barton said. “Your web developer can really help by putting some of those stopgaps in place so that you can change the information as you need to, but the shell for the overall accessibility is already there.”
Still, even building that kind of accessibility into the website’s design isn’t always enough, Ames said. Anyone posting new information to the site must be mindful of ADA requirements as well — for example, posting a PDF of a scanned flyer will not register on screen readers, devices that convert digital text into synthesized speech.
“What they’ve done is, they’ve taken information that was textual information and put it on their website as a picture,” Ames said. “If somebody comes along and tries to read that document through a screen reader, it’s going to tell them, ‘There’s an image there’ — it’s not going to tell them anything else.”
These principles apply equally to social media, which is an extension of the company’s website and therefore an extension of its public accommodation obligations, Barton said.
“If you’re not describing your photos that you post on social media, if you’re not shortening your links, if you’re using emojis, etc. — that, too, is inaccessible… Facebook Live is 100 percent inaccessible because you can’t caption it,” she said. “That, I think, is the future of what this looks like.”
Some social media platforms, like Facebook and YouTube, will automatically add alternative text to photos, but Barton warned that those descriptions are often inaccurate. If a company posts to Facebook a PDF advertising an upcoming hiring event, the website will not automatically break down the words, Barton said.
“If you just post that picture, the details of where and the time are lost in that PDF,” she said. “You can use that as a template and go back in and edit as needed, but you really need to be looking at those things.”
ENSURING EQUAL ACCESS
Making your website easy to navigate for people with disabilities will typically insulate a company from lawsuits. But more than that, it’s simply a smart business decision, Barton said.
“The spending power of people with disabilities, the disposable income — as a business owner, I feel like you’d want to tap into that,” she said. “The minute that your website isn’t accessible is the minute a person with a disability goes to your competitor and spends their money there.
“We would hope that would be the intent of any kind of business owner — that you are going to want your services to be accessible to everyone whether they’re browsing from a mobile device, sitting at home on their laptop, or coming into your store.”
Beyond businesses, an analysis conducted by the Miami Lighthouse for the Blind and Visually Impaired found that none of the 20 Democratic presidential candidates participating in last month’s debate — along with those of President Donald Trump and fellow Republican hopeful Bill Weld — have websites that fully comply with the ADA, Time magazine reported in June.
“Now you go from the spending power of individuals with disabilities to the voting power,” Barton said. “If you’re not making sure that people with disabilities can access your platform and hear what you’re talking about as a candidate, how are they going to choose the right person?
“The ADA, at the end of the day, is there to provide equal opportunities for people with disabilities to participate in public life. When our digital world is inaccessible, we are excluding the largest minority group in the country.”