This is a joint post written by myself and Marissa Goldsmith of Goldsmith Interactive in Washington D.C. By day Marissa is an advanced Google Analytics trainer and consultant. By morning, afternoon, evening, and long nights she is the mother of a child with spastic quadriplegic cerebral palsy, epilepsy, and a range of the conditions which result from that. Somewhat ironically, Marissa started her career as a web accessibility professional. She spoke about her journey from practitioner to special needs parent at WordCamp D.C.
To folks not in the know, the Americans with Disabilities Act – a 1990 law prohibiting discrimination based on disability – might seem like a lot of technical jargon. Specifications about ramp heights, curb cut outs, grandfather clauses about elevators – it’s not exactly the most accessible thing you’ll ever read (no pun intended).
But if you look behind the blueprints and specs, you will find what was, at the time, one of the most amazing pieces of legislation ever conceived.
It acknowledged, for the first time in the history of the United States, that disabled Americans had an equal right to a public life. Whether it was holding a job, going to a restaurant, or even visiting your Senator, you had as much of a right to be there as anyone else.
27 years later the ADA is still imperfect. One big problem is the grandfather clause for “older” (pre-1991) buildings. Most of the time establishments take complaints about disability access seriously. But sometimes the complaint falls on the indignant ears of a landlord who insists they have been “grandfathered” in. And it’s true. The ADA can be vague and open to interpretation for buildings built before 1991.
I have twice filed claims about a lack of disability access, only to get letters essentially saying “we’re not going to look into this, but that doesn’t mean it’s not illegal”. For example, one of those was for a medical building. There is an optometrist half a mile from my house who sells my daughter’s specialty glasses and lenses. But I have to drive 15 miles to an optometrist where I can take my daughter’s heavy motorized wheelchair, because the local optometrist’s medical building was built in the late 1980s.
Then there are the minor compliance issues. What businesses see as small, nit-picky details about a few inches’ worth of space can cause catastrophic problems. At the age of 3, my daughter’s adaptive stroller fell apart, with her inside of it, because of a cracked sidewalk. We had a few cuts and bruises, but one extra bump, or a different angle, and we could have easily had a cracked skull.
It’s enough to make a working mom of two collapse in exhaustion at the end of a long day of hauling wheelchairs up and down pre-1991 staircases.
Yet warts and all, the ADA was always there for me. It was something I could use to defend my daughter’s right to be in public spaces.
And then came Anderson Cooper and 60 Minutes.
In a hatchet job against the disabled – one for which he even duped a well-known disability activist – Cooper focused on the problem of accessibility trolling, or what he called “drive-by” and “Google” law-suits.
Accessibility trolling, where sleazy lawyers run an automated web accessibility scan on a business’s web site, generate a list of accessibility issues, and then send them an equally automated lawsuit threat – isn’t new. And no one, least of all those of us who depend on the Americans with Disabilities Act, would deny that it’s a problem. (Hell, the American Bar Association has even disbarred lawyers who engage in the practice.)
Cooper’s report referred to a short spell where dozens of businesses were sued by accessibility trolls for not complying with the ADA. Mind you, according to these reports, none of these claims were false. The businesses were not in compliance of a law that is now 27 years old. But he took the angle of the businesses, and not the disabled, being the victims of injustice because they were the ones getting sued even though no disabled customers had appeared before the barriers.
It seemingly never occurred to him that maybe the reason disabled people hadn’t come to those businesses was because they were not accessible in the first place.
Nevertheless, the 60 Minutes hatchet job caused a shitstorm.
It gave the irresponsible businesses who had ignored their ADA compliance obligations for 27 years ammunition to view themselves as the victims, and the people in wheelchairs as the dupes and hucksters.
That report got results. In one of his first acts of the next Congress, Representative Ted Poe from Texas – which was not the state featured in the piece – introduced H.R. 620: The ADA Education and Reform Act.
Or, as I like to call it, the NADA (Nullify the ADA).
In the guise of “fixing” the ADA, it nullifies the public accommodations section. Instead of businesses having an obligation to comply with disability law, H.R. 620 would allow them to sit around and wait for someone to complain.
(Because all disabled folks have lots of time on their hands to sit around and write complaint letters. I often find myself quite bored in the emergency room at 3 A.M. after my daughter has had one of her frequent life-threatening seizures).
Once that complaint letter – in a specific complaint format, requiring specific complaint criteria – is received, the noncompliant business would get to decide whether or not they will fix the problem. How long do they have to think it over?
For us, what we know as “I expect my doctor’s office to be accessible for my child” will become “maybe it will, maybe it won’t, and I’ll see you in six months.”
Welcome to America in 2017, where ambulance-chasing is deemed a problem, and the solution is to punish not the ambulance chasers, but children in wheelchairs.
So what does that have to do with web accessibility?
ADA’s relationship with web accessibility is an interesting one. Like so much of the legislation around the world, it predated the web, which means that its provisions have been haphazardly applied to issues it was never meant to address.
Over the years there have been quite a few lawsuits which explored the question of whether a web site is a “public accommodation” and therefore bound by the ADA. These cases have tended to include big names like Target, Pizza Hut, and Domino’s (hey, pizza is life.) Courts have been divided. In various cases, the 1st, 3rd, and 7th circuit courts ruled that ADA is applicable to web accessibility even when the web site is unrelated to a physical location, while the 6th, 9th, and 11th ruled that the web site needs to be associated with a physical place – like a store locator, or click and collect – to be covered by ADA Those decisions that have gone in disabled people’s favor have tended to rule that web sites must comply to WCAG 2.0 AA.
One recent pizza-related case, Robles v Dominos, took an interesting view of that question. In that case, the court ruled that requiring businesses to revise existing web sites to comply with industry-standard guidelines – in this case, WCAG 2.0 – would be a violation of their right to due process. Why is that? Because, said the court, those guidelines have not yet been approved by any Federal agency.
In other words: because WCAG 2.0 has not been referenced in specific Federal legislation, it cannot be referenced in an ADA lawsuit. Without that standard with which to reference the lawsuit, you can’t have a lawsuit.
The judge in Robles also ruled that the Department of Justice’s own failure to enact better accessibility legislation was part of the problem. The judge noted that DoJ has yet to issue any regulatory guidance on web accessibility despite having announced a rule-making process in 2010. That vagueness “places those subject to Title III in the precarious position of having to speculate which accessibility criteria their websites and mobile applications must meet.”
In other words: it totally sucks that the Department of Justice hasn’t done their job, but I can’t punish a business for that. And that’s a very fair judge indeed.
OK, then, you’re thinking: what sort of other web accessibility law might come into play here? That’s a problem too.
That process which the judge in Robles mentioned – the rulemaking process which began in 2010-2011 – was meant to create new legislation on web accessibility for web sites, apps, and ICT. The plan went nowhere. Several Senators nagged the Obama administration to hurry up and get on with it in early 2016 so we’d have that law by 2018, as had been promised. Nothing happened there either.
And then the new administration came in. That plan for new regulations on web accessibility was moved to the “2017 Inactive Actions” list. That’s government-speak for thrown into the trash.
In the meantime, in April 2016, the Department of Justice withdrew a plan to create regulations on the accessibility of public sector (government) web sites and apps.
Even the Section 508 refresh was briefly placed in jeopardy, as the real possibility briefly existed that 10 years of work on the refresh would be thrown away simply because the process ended in the final few weeks of the previous administration.
The bottom line is that there is no chance of any new web accessibility regulations coming in under the current administration.
And what little law there is – patchy, haphazard, half relevant, and barely able to deal with the architectural barriers it was designed for much less courtroom hair-splitting about web accessibility – is about to be stripped back by H.R. 620.
Oh, and by the way, the person who could possibly provide leadership on this has apparently been mocking two physically disabled colleagues behind their backs.
In private, President Trump has taken to physically mocking Mitch McConnell and John McCain https://t.co/C8GEdrDS57
— Justin Green (@JGreenDC) September 27, 2017
Well this is embarrassing
As if H.R. 620’s aspirations weren’t frankly humiliating enough, it would also place America out of step with developments in accessibility legislation elsewhere. For example, just last week the European Parliament approved the draft European Accessibility Act, an overhaul of disability rights legislation concerning products and services ranging from e-commerce web sites to ticketing machines to ATMs. Crucially, that Act concerns not only the products and services, but the built environment around them. For example, it will not be enough for an ATM to be accessible to the disabled: the ground around that ATM, be it a sidewalk or in a bank, has to be acceptable too.
Europe has wisely observed that there is no point in legislating the accessibility of an establishment if the means of reaching the establishment are not covered.
We might want to take the hint.
So what can you do?
Individuals with disabilities have rights in the public, physical space. And now, they are starting to invoke those same rights in the public, online space. The line between the two isn’t so distinct anymore. Want a job? Want ground transportation? Want concert tickets? An inaccessible site can prevent all of that from happening before lack of an access ramp will.
This makes H.R. 620 even scarier. It wants to roll back the right to exist in the physical spaces before we even have a chance to gain that right online.
At WordCamp D.C. I said “what sort of quality of life will my daughter have? Well, that depends on you.” Right now she’s a child who has a family around her. But someday she will be an adult who we all hope will be able to live independently. H.R. 620 will make that much harder than it needs to be. She may not be able to get out; she may not be able to get about; and she may not be able to fulfill her basic needs online.
I want my daughter to live in a country where a child who didn’t choose to be born far too early is given a fair chance to shine, and not told to pull herself up by the straps of the leg restraints on her wheelchair because it builds character.
And, yes, I want a future too. I don’t want to be still looking after her when she’s the age that I am now. I don’t want her to be stuck with me for life because the simple adaptations which could have allowed her to live independently were taken away because of automated trolling.
So you can play a part here.
Call your Representatives. Object to H.R. 620 as it is.
If your representative has co-sponsored H.R. 620, get them taught.
Demand that the draft of the law is not expanded to include web accessibility.
Imagine a time when web accessibility is not considered anti-business, and work for it.
Stay awake. Stay aware. Stay vigilant.
Develop to WCAG 2.0. Don’t wait to be told.
Stay positive. Build a culture of web accessibility as a means of doing better business, not checking a box out of fear of a lawsuit.
Educate each other on why this is important. Nag each other if you need to. A real friend tells you when your hair looks like a ferret slept in it or your roommate gave your boyfriend herpes or your web site is inaccessible. (We’ve been at it for 20 years.)
Oh, and tell ambulance chasing lawyers to go fuck themselves. Or report them to their state Bar. Or both.
This is a good fight worth showing up for. We’ll see you there.
About the author
Heather Burns is a digital law specialist in Glasgow, Scotland. She researches, writes, publishes, consults, and speaks extensively on internet laws and policies which affect the crafts of web design and development. She has been designing and developing web sites since 1997 and has been a professional web site designer since 2007. She holds a postgraduate certification in internet law and policy from the University of Strathclyde. Learn about hiring Heather to write, speak, or consult.