Applying the ADA to the Internet: A Web Accessibility Standard

by Cynthia D. Waddell, JD

ADA Coordinator, City of San Jose, CA USA

Written and Presented on June 17, 1998 at the request of the American Bar Association for their National Conference "In Pursuit . . . A Blueprint for Disability Law and Policy" http://www.abanet.org/cle/programs/n98bdl.html

Although it may seem that the World Wide Web has been like the Wild, Wild, West --where there are no laws and each frontier web site is on its own, there are significant legal and practical reasons for ensuring web accessibility. By web accessibility I am referring to the design of a webpage that embraces the requirements of Universal Design in order to ensure that all users can access the information on the page:

Universal Design calls for the development of information systems flexible enough to accommodate the needs of the broadest range of users of computers and telecommunications equipment, regardless of age or disability.

(September 1994 National Information Infrastructure White Paper by Susan Brummel, USGSA CITA, entitled "People with Disabilities and the NII: Breaking Down Barriers, Building Choice;" See http://www.itpolicy.gsa.gov/coca/nii.htm )

Unless a web site is designed in an accessible format, significant populations will be locked out as the World Wide Web rapidly advances from a text-based communication format to a robust, graphical format embracing audio and video clip tools.

Yet, the benefits of accessible web design extend beyond the community of people with disabilities and an aging population since it enables low technology to access high technology. There are substantial business incentives for technology transfer in underdeveloped countries and for populations who do not have the "state of the art" technology. Accessible web design features enable CD technology and videotapes to be archived with word search capabilities due to text captioning. Even people who are illiterate can access the Internet since screenreaders can audibly read text out loud from accessible webpages.

As the capital of Silicon Valley, the City of San Jose is proud to be a national leader in web accessibility implementation for local government. This article briefly discusses specific legal requirements for accessible web design and how the City of San Jose developed and implemented a minimal web accessibility standard that is now supported by the first draft international protocol for web accessibility. In a nutshell, public policy and legal compliance requires the removal of barriers to effective communication and commerce. By accommodating members of our diverse community, government can play a catalytic role in promoting a sustainable community.

DOJ Policy Ruling on Accessibility of Web Sites
http://www.usdoj.gov/crt/foia/tal712.txt

The Americans with Disabilities Act (ADA) requires covered entities to furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities, unless doing so would result in a fundamental alteration to the program or service or in an undue burden. See 28 C.F.R. §36.303; 28 C.F.R. §35.160. Auxiliary aids include taped texts, Brailled materials, large print materials, captioning and other methods of making audio and visual media available to people with disabilities.

The policy ruling states that ADA Titles II and III require State and local governments and the business sector to provide effective communication whenever they communicate through the Internet. The effective communication rule applies to covered entities using the Internet for communications regarding their programs, goods or services since they must be prepared to offer those communications via an accessible medium.

Specifically addressing the needs of people with visual disabilities, this policy ruling points out that providing a text format rather than a graphical format assures accessibility to the Internet for individuals using screenreaders. Without special coding, a text browser will only display the word "image" when it reads a graphic image. Moreover, if the graphic is essential to navigating the site (such as a navigational button or arrow) or if it imparts vital information (such as a table or image map) the user can get stuck and not be able to move or understand the information provided. As one user put it:

When blind people use the internet and come across unfriendly sites, we aren’t surfing, we are crawling ....Imagine hearing pages that say, ‘Welcome to ...[image].’ ‘This is the home of ... [image].’ ‘Link, link, link.’ It is like trying to use Netscape with your monitor off and the mouse unplugged. See how far you’ll get. 
(NY Times Cybertimes, 12/1/96)

Whereas the Internet in its infancy was only a text-based medium, the current graphical environment and problems associated with Portable Document Format (PDF) and hyperlinks designed as animated gifs are currently barriers on the World Wide Web. As technology erects additional new barriers, such as video-streaming and audio, people with hearing loss will also be impacted. Internet kiosks will need the flexibility and interoperability that accessible web design provides in order to be accessible to our communities.

Therefore, as government and businesses increasingly depend on the convenience of the Internet as a vehicle for programs, goods or services, the more it is important that accessible web design be addressed. Accessible web design enables effective communication and saves government resources since documents can be readily available, requests for ADA Alternate Document Formats can be satisfied, and Internet/Intranet access for employees with disabilities can be provided.

1997 Letter http://www.rit.edu/~easi/law/csula.htm

Not surprisingly, web accessibility issues are now being faced by educational institutions. Library reference services are being transformed by the efficiency of Internet access to information systems and search engines. Professors are teaching long distance learning courses over the Internet and even if a student is physically in class, homework assignments and resources are being posted on class homepages. Yet, even if a library terminal has assistive computer technology installed for students with disabilities, Internet research by students with disabilities is not possible with inaccessible web page design.

In a complaint by a student that a university had failed to provide access to the Internet, the Office of Civil Rights, United States Department of Education (OCR) discussed what was meant to provide effective communication. In a nutshell,

[T]he issue is not whether the student with the disability is merely provided access, but the issue is rather the extent to which the communication is actually as effective as that provided to others. Title II [of the Americans with Disabilities Act of 1990] also strongly affirms the important role that computer technology is expected to play as an auxiliary aid by which communication is made effective for persons with disabilities

(Pages 1-2, 1996 Letter; 28 C.F.R.§ 35.160(a))

In further clarifying what is meant by "effective communication," OCR has held that the three basic components of effective communication are: "timeliness of delivery, accuracy of the translation, and provision in a manner and medium appropriate to the significance of the message and the abilities of the individual with the disability." (Page 1, 1997 Letter)

OCR also points out that the courts have held that a public entity violates its obligations under the ADA when it only responds on an ad-hoc basis to individual requests for accommodation. There is an affirmative duty to develop a comprehensive policy in advance of any request for auxiliary aids or services. Moreover, the community of persons with disabilities is required to be consulted in the development of this policy. See Tyler v. City of Manhattan, 857 F. Supp. 800 (D. Kan. 1994).

Of particular interest is the analogy OCR draws between the rationale for bringing an existing building up to code for access and the purchase of new technology for information systems. For example, buildings built prior to access laws are governed by "program access" requirements and remodeling triggers the requirement to install certain accessible architectural features.

Similarly, the effective communication requirement imposes a duty to solve barriers to information access that the entity’s purchasing choices create. Whenever existing technology is "upgraded" by a new technology feature, it is important to ensure that the new technology either improves accessibility or is compatible with existing assistive computer technology. For example, web-authoring software programs that erect barriers in their coding of webpages fall under this scrutiny.

Lastly, OCR states that when an entity selects software programs and/or hardware equipment not adaptable for people with disabilities, "the subsequent substantial expense of providing access is not generally regarded as an undue burden when such cost could have been significantly reduced by considering the issue of accessibility at the time of the initial selection." (Page 2, 1997 Letter) Therefore, all technology improvements must take into account the removal of barriers and ensure that new barriers to access do not occur. Covered entities preparing to retrofit their web sites need to be aware of this issue.

In response to the monitoring of ADA Internet complaints and the need to incorporate City ADA implementation policies, the City of San Jose Web Page Disability Access Design Standard was developed in 1996. (See http://www.ci.san-jose.ca.us/oaacc/disacces.html) By integrating the requirements of the ADA and applying Universal Design principles, we have ensured the widest public access to City government information and services. Currently these standards are being incorporated into our web site and are subject to change as technology advances to solve these problems and integrate access tool kits in web-authoring tools.

By June 1996 seven minimum requirements were identified to ensure web accessibility:

1. Provide an Access Instruction Page for Visitors (includes email hyperlink for visitors to communicate problems with web page accessibility)

2. Provide support for text browsers

3. Attach "Alt" tags to graphic images so that screenreaders can identify the graphic

4. Hyperlink photographs with descriptive text "D"

5. Caption all audio and video clips by using "CC" hyperlinks

6. Provide alternative mechanisms for on-line forms (such as email or voice/TTY phone numbers)

7. Avoid access barriers such as the posting of documents in PDF, table, newspaper or frame format or requiring visitors to download software. If posting in PDF, the HTML text or ASCII file must also be posted.

The City of San Jose web accessibility standards were adopted by the Board of Supervisors for the County of Santa Clara in March 1997 and have been designated as a "best practices" model by the League of California Cities as well as the federal government. Named to the "Top 25 Women on the Web" by Webgrrls International, I am pleased to support the efforts of the technology industry to extend the benefits of the Web to the global community. With the launch in April 1997 of the Web Accessibility Initiative by the World Wide Web Consortium, hopefully web accessibility will soon become as common as an accessible building. Recently, the first draft guidelines for an international protocol was announced (see http://www.w3.org/Press/19948/WAI-Guide ) and a free web accessibility diagnostic has been upgraded to perform validation of web pages (see http://www.cast.org/bobby).

Without the application of ADA requirements to the Internet, new barriers to effective communication and global commerce will be erected that will have a discriminatory impact upon individuals with disabilities. Accessible web design should be mandated so that everyone, regardless of age or disability, or the limitations of their computer equipment, can participate in the benefits of the World Wide Web.

"Electronic Curbcuts: How to Build an Accessible Web Site" by Leslie M. Campbell and Cynthia D. Waddell, CAPED Communiqué, California Association on Postsecondary Education and Disability, Spring 1997
http:// www.prodworks.com/ilf/w5bcw.htm

"Electronic Curbcuts for Government Web Sites: Making Your Web Site Accessible" by Cynthia D. Waddell, ADA Update, Fall 1997, National League of Cities

Web Accessibility Initiative, World Wide Web Consortium
http://www.w3.org/WAI/

Bobby, a web site that will perform a free accessibility diagnostic and make suggestions
http://www.cast.org/bobby/

Starling Access Services- a web site that provides excellent tools for webmasters
http://www.starlingweb.com/acc/index.htm.

More Than Screen Deep: Toward Every-Citizen Interfaces to the Nation's Information Infrastructure, Computer Science and Telecommunications Board, Commission on Physical Sciences, Mathematics, and Applications, National Research Council; National Academy Press 1997 Full text posted at http://www.nap.edu/readingroom/books/screen

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