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You Mean the ADA Doesn’t Already Cover Web Sites?

by on December 1, 2010

The US Department of Justice has issued an Advance Notice of Proposed Rulemaking (ANPR) and is holding public hearings on the topic of applying the Americans with Disabilities Act (ADA) to private-company web sites. While many in the web accessibility community are lauding the move, many others — including more than a few web professionals — have been left scratching their heads. It seems there are two sources of this confusion.

But if Section 508 Doesn’t Cover the Web, What Does It Cover?

The first thing that throws people for a loop is the number “508”. Especially here in the US, “Section 508” or often just “508” has become a shorthand way to refer to web accessibility in general. This is not surprising. It’s easier to say “508” than “web accessibility” and it’s a lot lot easier to write. I’ve even heard it referred to as “501” (Levi Strauss & Co. should be thrilled at how much brand awareness their line of blue jeans commands).

The thing is, though, that however convenient a phrase Section 508 might be, it’s a particular piece of legislation with a relatively limited scope. Many people think Section 508 is part of the ADA. This, too, makes sense, since both deal with accommodating people with disabilities. But it’s not correct.

Section 508 is actually part of the Rehabilitation Act of 1973 as amended by the Workforce Investment Act of 1998. There’s a mouthful! Not to mention that within Section 508, there are several sections covering various technologies. §1194.22 is the part that specifically covers web sites. In any case, Section 508 is not part of the ADA and it only applies to the web sites of the US federal government, its agencies, and those sites provided by private companies contracted by the federal government.

The reach of Section 508 sounds very limited, but a couple of things are worth noting. First, the idea was the government’s considerable purchasing power would broaden the reach of Section 508 to the private sector. The thinking was that companies would not create one accessible version of their product for sale to the government and another non-accessible one for sale to the public at large, they would just create a single accessible version for sale in both markets. The second thing to keep in mind is that when companies as well as state and local governments looked to make their own sites accessible, they often took their lead from prevailing law, even if they weren’t explicitly covered by it. In the US this has meant Section 508.

So, Section 508 does cover the web, but it legally only covers a very specific part of it: the US federal government.

OK, but Doesn’t the ADA Cover Everything?

As the public at large becomes accustomed to seeing Braille on elevator buttons, access ramps to buildings, and grab bars in public restrooms, it might seem that in the 20-plus years the ADA has been law, that it really does cover pretty much all aspects of life. In fact, Title III of the Act does explicitly cover a remarkable range of human activities such as restaurants, theaters, bowling alleys, and places of public accommodation.

The ADA was passed in 1990 when the internet and the web effectively didn’t exist. While the Act is explicit on such private entities as bowling alleys, it couldn’t have anticipated the huge role web sites would quickly come to play in daily life. While the Department of Justice has long maintained that it considers private company web sites to be covered under the ADA — a letter written to Senator Harkin is most often cited — the question of whether web sites are “places of public accommodation” has been an issue at the heart of several prominent lawsuits, including the case against Southwest Airlines and the Target.com case. As of this writing, whether the web is covered under the ADA is an open legal question.

So, What Exactly Is the DOJ Proposing Then?

If Section 508 covers the federal government’s web sites, the US Department of Justice feels that the ADA does cover private company web sites, but the courts have not come down decisively one way or the other, what is going on with this “proposed rulemaking” on the part of the DOJ?

Effectively, the Department is exercising its administrative role and making explicit its interpretation of whether and how the ADA will apply to private company web sites. By issuing its advance notice, it is giving the public at large the opportunity to comment on these changes and have input on the final decisions.

While many of the details are still open — the Department has asked for comments on 19 different questions — the end result of this rule making will be that private companies’ web sites will be explicitly subject to the ADA. No longer will plaintiffs have to first argue that the ADA is applicable, they can now go directly to arguing the specific violation. Presumably the DOJ will also be in a position to take enforcement measures of its own.

Conclusion

The net effect will be that instead of having a reactive responsibility to make their web sites accessible because of the threat or fear of lawsuits, companies will now have a pro-active responsibility to ensure their sites are accessible from the beginning.

This will mean an adjustment in how web sites are developed, but these adjustments can be economically made by even small companies. Adding in an accessibility review can add 5% or less to development costs when planned correctly and with good, committed developers. These costs can be further reduced with as little as two days’ worth of training. And it is much much cheaper to build a web site correctly with accessibility in mind in the first place than to retro-fit an existing non-accessible one.

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