[Author: Bill Fischer]
Legally, it is required for 'places of public accommodation', educational institutions, government and federally funded organizations are required to comply with the regulations listed below. There has been a general lack of awareness and compliance by media creators. This is especially true in the public-sector web space. Accessibility rights advocacy groups have been ramping up lawsuits in an attempt to drive compliance. UsableNet's accessibility lawsuit report (external link) provides an excellent snapshot of the current state of the activity. Photo Illustration by Bill Fischer.
Title II & III of the ADA
Title II sets requirements for Local government, state government, private and public education. Title III sets requirements for places of public accommodation. These laws Prohibit discrimination on the basis of disability in all cases. This means media must meet WCAG 2.1 level AA requirements for electronic media. In general, “courses and examinations related to professional, educational, or trade-related applications, licensing, certifications, or credentialing must be provided in a place and manner accessible to people with disabilities, or alternative accessible arrangements must be offered”.
For commercial media, what constitutes a "place of public accommodation appears to be unsettled law. As explained in depth by the American Bar Association in its assessment of websites and Title III:
"Are websites covered by the ADA?: The answer depends on which federal Circuit Court of Appeals is answering the question and whether the business that owns the website has a physical place or location where it offers goods and/or service to the public. So far, the general agreement is that a website belonging to a business with a public-facing brick-and-mortar presence is covered by the ADA."
"What's Next?: Website accessibility law will continue to evolve—slowly. There are few appellate decisions, and each one prompts a flurry of questions from businesses eager for more guidance in this uncertain landscape. A few things are clear, however. Plaintiffs will continue to file lawsuits. They are pushing for coverage of sites that only provide information (e.g., news and pharmaceutical websites), investor-facing websites, B2B websites and websites unconnected to physical locations where goods and services are offered. Plaintiffs are also expanding their lawsuits to other digital assets, such as mobile apps and games. These areas are all uncharted territories ready to be mined by industrious lawyers and plaintiffs. Digital accessibility is here to stay, and businesses should proactively consider accessibility when acquiring, building and maintaining all digital assets."
These quotes are from a comprehensive analysis from the American Bar Association (external link)
The Title III Definition of "Place of Public Accommodation"
Places of Public Accommodation are defined on the ADA website as: businesses that are generally open to the public and that fall into one of 12 categories listed in the ADA:
Places of lodging (e.g. , inns, hotels, motels) (except for owner-occupied establishments renting fewer than six rooms);
Establishments serving food or drink (e.g. , restaurants and bars);
Places of exhibition or entertainment (e.g. , motion picture houses, theaters, concert halls, stadiums);
Places of public gathering (e.g. , auditoriums, convention centers, lecture halls);
Sales or rental establishments (e.g. , bakeries, grocery stores, hardware stores, shopping centers);
Service establishments (e.g. , laundromats, dry-cleaners, banks, barber shops, beauty shops, travel services, shoe repair services, funeral parlors, gas stations, offices of accountants or lawyers, pharmacies, insurance offices, professional offices of health care providers, hospitals);
Public transportation terminals, depots, or stations (not including facilities relating to air transportation);
Places of public display or collection (e.g. , museums, libraries, galleries);
Places of recreation (e.g. , parks, zoos, amusement parks);
Places of education (e.g. , nursery schools, elementary, secondary, undergraduate, or postgraduate private schools);
Social service center establishments (e.g. , day care centers, senior citizen centers, homeless shelters, food banks, adoption agencies); and
Places of exercise or recreation (e.g. , gymnasiums, health spas, bowling alleys, golf courses).
Rules for Federal Agencies and Funded Organizations
Rehabilitation Act Section 504
Requires federal departments, agencies, and public schools to ensure accessibility of their “electronic and information technology” to individuals with disabilities unless to do so would result in an undue burden, in which case multiple modes of access can be employed (see below). Aids, benefits, and services must be “equally effective”—i.e., they must provide persons with disabilities “an equal opportunity to obtain the same result, gain the same benefit, or reach the same level of achievement."
Rehabilitation Act Section 508
Federal departments and agencies, some state governments and educational institutions, and federal grant recipients, are required to meet WCAG 2.2 level AA requirements plus additional section 508 regulations, which were last update in 2018. Websites, Multimedia mobile apps, and desktop multimedia will all need to comply or multiple modes of access will need to be offered. The three main components are:
Technical – these requirements make sure the coding of a website, software, operating systems, etc. is compatible with assistive technologies.
Functional – these requirements ensure that in addition to the technical coding, the entire system is usable by someone with a disability.
Support – these requirements make sure that support documents and alternative information is also accessible by people with disabilities.
FCC CVAA (21st Century Communications and Video Accessibility Act)
Title I of the CVAA
Requires advanced communications services and products to be accessible by people with disabilities. This includes, for example, text messaging, e-mail, instant messaging, in-game, and video communications. It also requires access to web browsers on mobile devices by people who are blind or visually impaired.
Title II of the CVAA
Requires television programming that is repurposed for online delivery to have captioning and audio descriptions available. It does not cover user-generated content (e.g., YouTube videos posted by individuals).
Below are some of the important legal events that have defined the trajectory of media accessibility.
At this time compliance is a judgment call and is being tested in the courts. As more court cases are waged and settled, a qualitative understanding of compliance will continue to be better defined. This understanding will be compiled and published as guidelines by organizations like W3-WCAG, UDL on Campus and 3PlayMedia
Usablenet’s data and research team reported that ADA-related lawsuits increased by 23% in 2020 (3,550 total).
The Twenty-First Century Communications and Video Accessibility Act of 2010 (CVAA) updated accessibility laws that require games to provide accessible Advanced Communications Services (ACS), such as player-to-player messaging.
An individual blind Plaintiff, Angelo Binno, recently settled a lawsuit against the LSAC (Law School Admissions Council) because they could not engage with the logic games that are a part of the Law School Admissions Test (LSAT). The settlement demands that LSAC will have to find accessible methods for testing analytical reasoning skills within four years.
The DOJ, which is responsible for enforcing Title III of the ADA, has publicly stated that it interprets Title III of the ADA to apply to websites operated by public accommodations. Although the DOJ has not yet published any regulations on this issue, the DOJ solicited public comments for potential regulations concerning websites in 2010. In its Advanced Notice of Potential Rulemaking, the DOJ made clear that it did not believe that the Internet itself should be considered a place of public accommodation, but that it believed Title III should apply to the websites of entities that provide goods or services that fall within the 12 categories of “public accommodations.”
A legal precedent was set through a 2012 lawsuit when the purely digital (with no physical space) company Netflix was identified as a place of public accommodation. Since then, the majority of lawsuits against commercial entities have targeted the retail/eCommerce, and education industries.
According to the NY Times in a May 2018 report By Erica L. Green entitled "Disability and Civil Rights Groups Sue DeVos Over Investigation Rollbacks (external link)", Education advocate Marcie Lipsitt (external link "had opened more than 2,400 web-accessibility complaints against various educational institutions in the last two years which resulted in more than 1,000 resolution agreements with institutions such as colleges and universities, which vowed to make their websites accessible to people who are deaf or blind or who struggle with fine motor skills". In May of 2018, The department of education released new rules resulting in the dismissal of more than 500 cases filed by Marcie Lipsitt. The changes have also resulted in some of the previous agreements being revised.