ADA Does Not Apply to Web Sites

Southwest Airlines won its motion to dismiss a lawsuit attempting to apply the American's with Disabilities Act ("ADA") to web sites. Judge Seitz's (Southern District of Florida) ruling is available in PDF [not viewable through screen readers -- I wonder if the Court understands this addition of insult to injury].

The plaintiffs in this suit alleged that Southwest's web site was unreadable to blind people (even using screen readers). Among other things, plaintiffs alleged that Southwest didn't use ALT tags for image elements. As a result, plaintiffs argued that Southwest's web site violated the ADA's anti-discrimination provisions for "places of public accommodation."

The Court ruled that it could not construe the ADA concept of "places of public accommodation" to include web sites. Regarding plaintiffs alternative argument, that Southwest's web site's faulty construction denied them access to a physical space other than the web site itself, the Court ruled that plaintiffs had not established any relationship between the Southwest web site and denial of access to a physical space. [In a footnote, the Court notes that aircraft are explicitly exempt from Title III of the ADA. See fn 12 (citing 42 U.S.C. 12181(10)).]

The design of accessible web sites is incredibly important and yet very few people / corporations / educational institutions do it well (or even passably). As the web becomes an increasingly essential facility to living -- from books only available online, to travel deals requiring online purchase, to university application, enrollment or classes available only online -- lack of universal accessibility is one of the widening divides that more investment in infrastructure cannot bridge. No amount of donated computers will rewrite popular web sites in a way in which all can access. And, since accessibility engineering gets harder as time progresses, doing it right the first time is very important.

I am an offender myself and am trying to mend my ways, but do as I say not as I do. In that respect you should:

  1. Separate format from content. Content management systems, such as Moveable Type, help because they force people to concentrate on content and format separately from the content of their sites. Also they make updating a site's format easier even for older content. Ideally though, content should be transformed for different user agents. This does not mean that accessible sites have to be boring, only that their functionality should degrade gracefully.

  2. Don't rely on your audience having a particular client, or sense. The Microsoft-critical horde is quick to understand that control of the platform allowed Microsoft to "break" competing applications and ensures that Microsoft applications are very tough to "port" to other OSes. The same is true of sites that rely on proprietary browser extensions to standards or on particular senses. If you rely on Internet Explorer's special mark up to make your web site's readable, you will "break" Mozilla users' experience. If you rely on sight by not providing ALT tags, visually impaired users will have a very tough time using their "porting" tools, such as screen readers, to "port" your site so that they can experience it. In both cases, it is not just your potential users who are losing, you are also diminishing the universality of access to information. You are becoming the Microsoft that the DOJ has been chasing for years. Validate, validate, validate.

  3. Go low tech. The best way to fix your site is to try to think about it from the point of view of each of your potential users, including those who are visually or otherwise impaired. That can be very difficult, but a good proxy is to try viewing your site with a text based browser such as Lynx. Lynx is freely available on a multitude of platforms and it will only take a few seconds for you to have a better idea of how your site looks to others. You can also use the lynx web viewer.

  4. Listen carefully. If someone takes the time to tell you that your web site is hard for them to use, there are probably hundreds of people that had the same reaction but, instead of telling you, just stopped using your site.

For further reading consider:

The Court's final footnote is worth repeating here:

Given the number of visually impaired persons who utilize the Internet for commerce, and the significant amount of business that Southwest obtains through its Internet website, it is unfortunate that that parties have not cooperated to develop a creative solution that benefits both parties and which avoids the costs and polarizing effects of litigation. It is especially surprising that Southwest, a company which prides itself on its consumer relations, has not voluntarily seized the opportunity to employ all available technologies to expand accessibility to its website for visually impaired customers who would be an added source of revenue. That being said, in light of the rapidly developing technology at issue, and the lack of well-defined standards for bringing a virtually infinite number of Internet websites into compliance with the ADA, a precondition for taking the ADA into "virtual" space is a meaningful input from all interested parties via the legislative process. As Congress has created the statutorily defined rights under the ADA, it is the role of Congress, and not this Court, to specifically expand the ADA's definition of "public accommodation" beyond the physical, concrete places of public accommodation, to include "virtual" places of public accommodation.

Eminently reasonable advice. Each web site ought to address accessibility. Industry as a whole ought to develop better standards, or more reliably implement the standards that already exist. And, if neither of those happen, then Congress ought to find some consensus and act.

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