The Americans with Disabilities Act (ADA) was signed into law by President George H.W. Bush in 1990. Prior to the ADA, individuals with disabilities had little to no protection from discrimination. Access and accommodations were limited or non-existent in all aspects of life from transportation to healthcare to education to civil rights (Burgdorf, 2015; Burgdorf, 2015).
The ADA prohibited discrimination against individuals with disabilities and guaranteed their civil rights (The ADA National Network, 2019). It required access and accommodations to be made such as ramps to buildings or disabled parking spaces.
Since the ADA was passed in 1990, new legislation was enacted to update the law with changing technology. In 1996, the Telecommunications Act was passed and included accessibility requirements in telecommunication products and services including wired and wireless phones, fax machines, and computers with modems (Federal Communications Commission, 2019). In 2010, the Twenty-First Century Communications and Video Accessibility Act was passed, further updating the law to include digital technologies and devices and the internet (S. 3304, 2010).
Many businesses and people believe that there is a phenomenon known as “drive-by lawsuits” where individuals with disabilities and lawyers “drive-by” businesses and bring frivolous lawsuits for financial gain citing ADA violations (Cooper, Davis, & Hornblower, 2016). This phenomenon is now believed to be occurring in the digital sphere where websites are being sued for not being accessible (Harrilchak, 2018; Martin, 2018; NFIB, 2019; Pulliam, 2017; WFLA, 2019). Businesses complain that there are no set standards, it is too expensive to make websites accessible, and there are too many disabilities to try to accommodate (Harrilchak, 2018; Martin, 2018; NFIB, 2019; Pulliam, 2017; WFLA, 2019).
Meanwhile, there is a growing digital divide between abled and disabled individuals on digital devices and the internet. According to the US Census Bureau, “About 56.7 million people — 19 percent of the population — had a disability in 2010, according to a broad definition of disability, with more than half of them reporting the disability was severe…” (United States Census Bureau, 2012). This population is less likely to use technology, spend time online, or adopt technology, according to Pew Research Center (Anderson & Perrin, 2017).
What businesses and people fail to understand is that this issue of accessibility, digital or otherwise, is about access and equality. This belief that lawsuits are frivolous, outrageous, or a shakedown of some kind are false. “…Under the federal law, people can only demand a remedy to the accessibility problem and cannot receive a financial settlement beyond attorney fees,” (Smith, 2019). While there are abuses of the system, as there are in every bureaucratic system, the vast majority of lawsuits are the last resort of individuals who simply want to access goods and services from companies who refuse to comply with the law and make their website accessible.
Complaints from businesses that there are no set standards for digital accessibility are not true. There are resources online including WebAIM and the Web Accessibility Initiative and accessibility companies and consultants. The Web Accessibility Initiative, for example, states directly on its website, “Strategies, standards, resources to make the Web accessible to people with disabilities,” and is easily searchable (Henry, 2005).
Businesses falsely believe that, because the ADA was passed in 1990, it does not or should not include the internet or digital technology (Harrilchak, 2018; Martin, 2018; NFIB, 2019; Pulliam, 2017; WFLA, 2019). However, the Telecommunications Act of 1996 and the Twenty-First Century Communications and Video Accessibility Act of 2010 included accessibility measures for these issues and there should be no question (or excuse) whether or not websites, apps, etc. should be made accessible (Federal Communications Commission, 2019; S. 3304, 2010).
For me, this issue is personal. As someone who is disabled and also has a partner who is disabled, accessibility matters. We both depend on accommodations that would not exist without the ADA. Digital accessibility and accessibility in general are very important to both of us because, without it, we would not be able to navigate the world.
Digital accessibility is especially important for my partner who is deaf. He has BAHA cochlear implant that allows him to hear, but it is not perfect. For example, if he is listening to a video and there is a lot of noise around, he will not be able to hear the video. This makes closed captioning important for him to hear everything. Without closed captioning, he will miss some of the words being said aloud.
Closed captioning is not perfect. A recent story that went viral on social media detailed this describing closed captioning issues surrounding episodes of Queer Eye where the closed captions would bleep out swear words or otherwise be inaccurate (Kilkenny & Shanley, 2018; Ratcliff, 2018; Salisbury, 2018). This is a common experience we also have as well as captions not syncing properly. That is all of course if closed captions are provided at all, which, at times, they are not (Salisbury, 2018).
The issue of digital accessibility is about more than closed captioning. The use of screen readers is vitally important for many. WebAIM (2017) has surveyed screen reader users several times over the years documenting their demographics, screen reader programs, and issues surrounding accessibility. This information is out there for content creators, businesses, and anyone else to find and use for web accessibility.
Individuals with disabilities are not out to get businesses or bring frivolous lawsuits as some would lead you to believe (Cooper, Davis, & Hornblower, 2016; Harrilchak, 2018; Martin, 2018; NFIB, 2019; Pulliam, 2017; WFLA, 2019). The motive behind a lawsuit is to have the legal means to force a company to comply with the law. Under the federal law, there is no money in it, just a legal remedy and attorney fees (Smith, 2019).
Individuals with disabilities simply want equality. We want to go to the movie theatre and watch a movie with subtitles. We want to access a website using a screen reader. We want to order a pizza or a pair of shoes online. We are people who want to do the same things as everyone else and to do that we need some accommodations.
More and more business, communication, etc. is moving online and those with disabilities (and their money) are being left behind. Businesses have had to transition from brick and mortar to digital and it is not that complicated to further transition into a more accessible online presence, especially with all of the online resources available.
Radical Technologies states, “We enjoy near-universal access to a medium that connects virtually everyone we’ve ever met or ever will meet, and furnishes us beyond that with immediate access to most of the things anyone has ever spoken, written, painted, sung or committed to the screen…” (Greenfield, 2018). Except we do not. Individuals with disabilities, among other groups, do not have this same access. All these businesses refusing to comply with mandates set by the ADA are the reason why. It is time everyone educated themselves and started working towards a more accessible world.
Anderson, M., & Perrin, A. (2017, April 07). Disabled Americans less likely to use technology. Retrieved from http://www.pewresearch.org/fact-tank/2017/04/07/disabled-americans-are-less-likely-to-use-technology/
Burgdorf, R., Jr. (2015, June 17). A Dozen Things to Know About the ADA on Its 25th Anniversary. Retrieved from https://www.law.udc.edu/page/ADAAnniversary
Burgdorf, R., Jr. (2015, July 24). Why I wrote the Americans with Disabilities Act. The Washington Post. Retrieved from https://www.washingtonpost.com/posteverything/wp/2015/07/24/why-the-americans-with-disabilities-act-mattered/
Davis, K., & Hornblower, S. (Producers). (2016, December 4). 60 Minutes [Transcript, Television series episode]. In What’s a “drive-by lawsuit”? CBS News.
Federal Communications Commission. (2019, March 01). Telecommunications Access for People with Disabilities. Retrieved from https://www.fcc.gov/consumers/guides/telecommunications-access-people-disabilities
Greenfield, A. (2018). Radical Technologies: The Design of Everyday Life. London: Verso.
Harrilchak, M. (2018, August 28). ADA website lawsuits a growing problem for retailers. Retrieved from https://nrf.com/blog/ada-website-lawsuits-growing-problem-retailers
Henry, S. (2005, February). Introduction to Web Accessibility. Retrieved from https://www.w3.org/WAI/fundamentals/accessibility-intro/
Kilkenny, K., & Shanley, P. (2018, August 03). Behind the Fight to Improve Netflix’s Closed Captioning. Retrieved from https://www.hollywoodreporter.com/news/behind-fight-improve-netflixs-closed-captioning-1126721
The ADA National Network. (2019, March 06). What is the Americans with Disabilities Act (ADA)? Retrieved from https://adata.org/learn-about-ada
Martin, H. (2018, November 11). Lawsuits targeting business websites over ADA violations are on the rise. Los Angeles Times. Retrieved from https://www.latimes.com/business/la-fi-hotels-ada-compliance-20181111-story.html
NFIB. (2019, January 28). Plaintiff’s Bar Opens New Front in ADA Website Litigation. Retrieved from https://www.nfib.com/content/legal-blog/legal/plaintiffs-bar-opens-new-front-in-ada-website-litigation/
Pulliam, M. (2017, June 17). Is your company’s website accessible to the disabled? You’d better hope so. Los Angeles Times. Retrieved from https://www.latimes.com/opinion/op-ed/la-oe-pulliam-ada-websites-20170611-story.html
Ratcliff, A. (2018, July 10). I Rely On Closed Captions to Enjoy a Show And I Don’t Appreciate Netflix’s Way of Censoring Them. Retrieved from https://www.self.com/story/queer-eye-netflix-closed-captions
S. 3304, 111th Cong., U.S. G.P.O. (2010) (enacted).
Salisbury, J. (2018, July 02). It’s not just Queer Eye – bad subtitling is a daily problem for deaf viewers | Josh Salisbury. Retrieved from https://www.theguardian.com/commentisfree/2018/jul/02/queer-eye-bad-subtitling-deaf-viewers-netflix-on-demand
Smith, S. (2019, February 05). Websites need to be more accessible for disabled people. Retrieved from https://www.vox.com/the-goods/2019/2/5/18210912/websites-ada-compliance-lawsuits
United States Census Bureau. (2012, July 25). Nearly 1 in 5 People Have a Disability in the U.S., Census Bureau Reports [Press release]. Retrieved from https://www.census.gov/newsroom/releases/archives/miscellaneous/cb12-134.html
WebAIM. (2017). Screen Reader User Survey #7 Results. Retrieved from https://webaim.org/projects/screenreadersurvey7/
WFLA. (2019, February 07). Businesses ‘sitting ducks’ for lawsuits because websites aren’t ADA compliant. Retrieved from https://www.news10.com/news/national/businesses-sitting-ducks-for-lawsuits-because-websites-aren-t-ada-compliant/1761894112