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Public Accomodation:
The US Web Accessibility Jigsaw

(SIGCHI Bulletin January/February 2003)

October 2002 saw the addition of two new pieces to the jigsaw puzzle that is web accessibility case law in the US. Unfortunately, one of them does not fit. In the first ruling of its kind, U.S. District Judge Patricia Seitz found that Southwest Airlines did not have to modify its web site to meet the needs of a blind user, Robert Gumson. But only a week later and a few states away, Judge Thomas W. Thrash, Jr. ruled that Atlanta’s Metropolitan Atlanta Rapid Transit Authority (MARTA) would have to change its site to provide timetable information to visually impaired users. Needless to say this situation was more than a little confusing to anyone involved in web site design and development.

Why such contradictory outcomes at virtually the same time? Let’s look at the Atlanta case first. The web accessibility issue here was only one of a number of complaints raised by the plaintiffs in a class action suit against MARTA. Issues ranged from unreliable access lifts on buses to customer service staff who were unhelpful or unsympathetic to customers with special needs. However, the most important legal aspect of the case is that MARTA is a provider of public transport and is therefore explicitly covered by the Americans with Disabilities Act, Title II. This states unambiguously that “public transportation authorities may not discriminate against people with disabilities in the provision of their services.” Unfortunately, this section of the ADA does not extend to air carriers.

Instead, the Southwest Airlines case was brought under Title III of the ADA, which deals with “public accommodations”. Judge Seitz argued that a web site is not a public accommodation under the terms of the act. I have to say that in any casual reading of the relevant clauses it would be hard to disagree. The definition is:

“Place of public accommodation means a facility, operated by a private entity, whose operations affect commerce and fall within at least one of the following categories…”

It then goes on to list dozens of examples of bricks-and-mortar facilities. So perhaps this avenue is closed to a “web site as public accommodation” argument? Not quite. In a well-publicized 1996 letter to US Senator Tom Harkin, Assistant Attorney General Deval Patrick stated that section 36.303, which deals with auxiliary aides and services did apply to web sites. Certainly there seems to be no argument in this area when it comes to government services (in conjunction with section 508 of the Rehabilitation Act). However, for commercial concerns, the focus again returns to the definition of a public accommodation. Section 36.303 starts

“A public accommodation shall take those steps that may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals…” (emphasis is mine)

So while Attorney General Patrick is correct if a web site can be defined as a public accommodation, the ADA does not apply if it cannot. This currently leaves just one last glimmer of hope in applying the ADA to web sites as it stands. In a June 2000 appeal brought by Harold Hooks against Okridge, Inc. several compelling examples of case law were raised that extended the jurisdiction of the ADA beyond the physical premises operated by the public accommodation. While Hooks lost his case for other reasons, it was a conclusion of the appeal court that it should overturn the lower court’s finding that “the ADA does not apply to a commercial business providing services on the internet”. It is not clear why this interpretation of internet services as public accommodations is not mentioned in the Southwest Airlines judgment. Hopefully we will be hearing more about this in the not too distant future.

Certainly the rest of the world looks on with great interest. While the UK Disabilities Discrimination Act does deliberately deal with services (which is perhaps the biggest problem with the US ADA), it is not at all well known or understood. For example, it has been illegal since December 1996 to discriminate against employees with disabilities by treating them less favorably. Yet in evaluations of some of the UK’s largest intranets I have seen none where accessibility was an important design consideration. Happily, in most instances, the required changes are not extensive and employers are usually enthusiastic about conforming to the legislation before any court cases arise. The difficulty that we are faced with though, is precisely that no cases have been brought to court in the UK as yet. Hopefully they will come soon, as the act is couched in extremely general terms and much guidance is needed in the practical definition of expressions such as “reasonable adjustments”. Court appearances will also help to focus the attention of those buying web development software and services, which is probably the most direct route to improved accessibility.

Related Links:
Gumson vs. Southwest Airlines: http://www.bytowninternet.com/southwest.html
MARTA case: http://www.gand.uscourts.gov/documents/1001cv3255TWTinj.pdf
Letter to Senator Harkin: http://www.usdoj.gov/crt/foia/tal712.txt
Hooks vs. Okbridge Appeal: http://www.usdoj.gov/crt/briefs/hooks.htm
UK DDA: http://www.disability.gov.uk/dda/

The Author

William Hudson is principal consultant for Syntagm Ltd, based near Oxford in the UK. His experience ranges from firmware to desktop applications, but he started by writing interactive software in the early 1970's. For the past ten years his focus has been user interface design, object-oriented design and HCI.

Other free articles on user-centred design: www.syntagm.co.uk/design/articles.htm

© 2001-2005 ACM. This is the author's version of the work. It is posted here by permission of ACM for your personal use. Not for redistribution. The definitive version was published in SIGCHI Bulletin , {Volume 35, January-February 2003} http://doi.acm.org/10.1145/601798.601810

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