Proposed ADA Title III Changes Create Uncertain Future for the Disabled and Accessibility

No wheelchair accessA business that purposely turns away customers and revenue makes little sense but this is exactly what many businesses do to disabled customers – and proposed changes with the ADA may encourage it.

While the UK is more attentive to the needs of disabled people, the USA has a lackluster attitude backed by its own Government. Despite the existence of the Americans with Disabilities Act (ADA), there is enough wiggle room written into it that causes confusion over expectations and invites an outright lack of compliance.

This week, a debate over a proposed change to the ADA, supported by both political parties, has caused alarm.  If your work touches an Internet property in any capacity, from marketing to design, and that property conducts business online, you should be aware that the practice of preventing anyone from successfully using it may result in a lawsuit.  This applies to brick and mortar businesses as well.

The proposed changes tease the idea that should anyone be unable to access a place of business due to their disability, another path is open to them to fight back.

Social media backlash.

The ADA in Brief

The Americans with Disabilities Act became law in the US in 1990. As a civil rights law, it prohibits discrimination against individuals with disabilities in all areas of public life, including jobs, schools, transportation, and all public and private places that are open to the general public. The purpose of the law is to make sure that people with disabilities have the same rights and opportunities as everyone else.

Our focus is on Title III, Public Accommodations and Services Operated by Private Entities, which directs businesses to make “reasonable modifications” to their usual ways of doing things when serving people with disabilities. This is why you see ramps installed, railings in bathrooms, and specific areas for parking. Title III requires that businesses take steps necessary to communicate effectively with customers with mobility, vision, hearing or speech disabilities. It is regulated and enforced by the Department of Justice.

Web Based Accessibility and Lawsuits

The theory behind the law applies to websites and applications but has traditionally been ignored.  That changed when people fought back. There are hundreds of documented cases of lawsuits brought by people unable to complete tasks on websites because the design of the site prevents them from using it. The most basic hazard is the inability to read the content because of the font size and color choices.

The threat of being sued by someone who is unable to use your website or software is quite real.  Many people recall the 2005 lawsuit against the USA department store chain, Target, by the National Federation for the Blind.  Three years later, Target Corporation settled the class action lawsuit and agreed to pay class damages of $6 million.

A judge in the District Court in South Florida recently ruled in favor of a blind resident who was unable to read the store’s online coupons using his screen reader or conduct other tasks on the Winn Dixie food store web site.  The case become a historical first because it went to trial.

Now we have a new concern.

H. R. 620

The U.S. House Judiciary Committee voted to advance H.R. 620, which was introduced by Texas Representative Ted Poe, on September 7. Its goal is to allow businesses to opt out of Title III, according to the Disability Rights Education & Defense Fund.

If passed, it becomes the responsibility of the people with disabilities to make sure businesses have the appropriate accommodations. Disabled people will be the ones pursuing who to complain to. Business owners have 60 days to respond with a plan for improvement and 120 days to make corrections.

In other words, there is no legal reason for a non-government web property (.gov sites follow Section 508) to build a web presence that everyone can use.  If a physical handicap prevents the completion of a task online, it is the job of the user to get help.  Since many will hire lawyers, this is great news for those ambulance chasers who already enjoy the frenzy of unhappy users.

Worth the Risk?

Would it be worth the risk to not invite everyone to your website?  Do you know if your website meets accessibility standards?  Does the proposed change for the ADA provide legal backing for ignoring and disabling unhindered access to tasks, content, information and transactions?

Congress apparently feels that business should have the legal right to discriminate. I think that ignoring special needs users is going to backfire in the age of social media and reputation management.

Get out your cameras folks. Write about your experiences.  More lawsuits will occur but sometimes public humiliation is all it takes to get help.  To learn more and protect your brand, as well as translate the ADA recommendations to online guidelines, here are some resources:

https://www.theuserisoutthere.com/website-risk-accessibility-lawsuit/

https://creativevisionwebconsulting.com/winndixie-lose-accessibility-lawsuit/

https://www.aclu.org/blog/disability-rights/congress-wants-change-americans-disabilities-act-and-undermine-civil-rights

 

 

 

 

 

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About Kim Krause Berg

Kim built her first website in 1995, launched Cre8pc.com, a teaching site about SEO, in ’96 and Cre8asiteforums in ’98. While employed as a user interface engineer, she was trained in software functional testing and human factors design. She has been a consultant since 2002. In 2012, she sold Cre8asiteforums to Internet Marketing Ninjas and in 2014 formed her LLC, Creative Vision Web Consulting, from which she consults for client companies large and small.

The User is Out There is Kim’s weekly column, where she’ll guide you through the labyrinth of usability, user experience, conversions, accessibility and mobile design. For more of her thoughts on these topics and more, check out her website, The User Is Out There.

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