Ill-Conceived–Americans Disabilities Act (ADA)– Failing in Workplaces: Yet It’s Poised for Adoption in Internet Websites…

Americans With Disabilities Act( ADA) is one of the most significant federal laws of the last 25 years… The law’s purpose is to provide full economic opportunity to disabled people without discrimination. It forbids employers from discriminating against them on the basis of their disabilities.

The law has a major impact on employers’ practices in job application procedures, hiring, job placement, compensation, promotions, terminations, and other areas. It has also been the source of much litigation against employers. The Equal Employment Opportunity Commission (EEOC) reported that it received nearly 140,000 ADA-related complaints in one seven-year period…

According to government labor data, of the 29 million working-age Americans with a disability– over 24 million are unemployed, which is leading some experts to question the effectiveness of the law…

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The ADA is one of those laws that, on an emotional level at least, it’s hard to oppose… After all, who can really be against the idea of making it easier for disabled people to function in the modern world? However, in the 25-odd years since the ADA has become law, courts have struggled with the question of how the law should be applied and what, exactly, constitutes a ‘reasonable accommodation’ under the law; especially when it relates to cyberspace… However, a federal judge has ruled that Internet online providers that serve the public are subject to the regulation of ADA… According to Peter Blanck; under this judge’s reading of the law, all Internet businesses must add features that make their websites usable by people with disabilities…

The implications of such a ruling are potentially quite far-reaching: Any website created for a commercial purpose would be required to invest the resources necessary to make the website accessible to all people with disabilities, e.g.; visual, auditory… However, there are many business people who see the disabilities issue differently: Yes, commercial website developers should do their best to accommodate people with disabilities who wish to access their websites, however, trying to apply a law that was written even before the Internet was invented is a mistake… the real solution is for Congress to revisit the law that was drafted in a different era and update it, such that its reasonable and relevant in world that we live in now…

The Americans with Disabilities Act (ADA) was signed into law on July 26, 1990. Its overall purpose is to make society more accessible to people with disabilities. In 2008, the ADA Amendments Act (ADAAA) was passed: Its purpose is to broaden the definition of disability, which was narrowed by U.S. Supreme Court decisions. The ADA’s protection applies primarily, but not exclusively, to people who meet the ADA’s definition of disability: A person has a disability if; he/she has a physical or mental impairment that substantially limits one or more of his/her major life activities…

Also, other people who are protected under the law, include; 1) those, such as parents, who have an association with a person known to have a disability, and 2) those who are coerced or subjected to retaliation for assisting people with disabilities in asserting their rights under the ADA… While the ADA employment provisions apply to employers of 15 employees or more, its public accommodations provisions apply to all businesses, regardless of number of employees… and it also applies to  state and local governments regardless of size. The ADA is divided into five titles:

  1. Employment (Title I): Title I requires covered employers to provide reasonable accommodations for applicants and employees with disabilities and prohibits discrimination on the basis of disability in all aspects of employment. Reasonable accommodation includes, for example; restructuring jobs, making work-sites and workstations accessible, modifying schedules, providing services, such as; interpreters, modifying equipment, policies…
  2. Public Services (Title II): Under Title II, public services (which include state and local government agencies, the National Railroad Passenger Corporation, and other commuter authorities) cannot deny services to people with disabilities or deny participation in programs or activities that are available to people without disabilities. In addition, public transportation systems, such as; public transit buses, must be accessible to individuals with disabilities…
  3. Public Accommodations (Title III): Public accommodations include facilities, such as; restaurants, hotels, grocery stores, retail stores… as well as privately owned transportation systems. Title III requires that all new construction and modifications must be accessible to individuals with disabilities. For existing facilities, barriers to services must be removed if readily achievable…
  4. Telecommunications (Title IV): Telecommunications companies offering telephone service to the general public must have telephone relay service to individuals who use telecommunication devices for the deaf (TTYs) or similar devices…
  5. Miscellaneous (Title V): This title includes provision prohibiting either; (a) coercing or threatening, (b) retaliating against individuals with disabilities or individuals who are attempting to aid people with disabilities in asserting rights under the ADA…

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In the article Unintended Consequences of ADA by Thomas De Leire writes: The employment provisions of the ADA exemplify the ‘law of unintended consequences’ because, in the opinion of some experts, those provisions have harmed the intended beneficiaries of the Act, not helped them. ADA was enacted to remove barriers to employment of people with disabilities by banning discrimination and requiring employers to accommodate disabilities… However, studies of the consequences of the employment provisions of ADA show that the Act has led to less employment of disabled workers…

Although ADA has caused some employers to accommodate people with disabilities, the cost of complying may have reduced the demand for disabled workers and thereby have undone ADA’s intended effects… However, according to Paul Miller; ADA has helped to raise awareness of challenges faced by people with disabilities and establish guidelines that help business better understand what is expected from them… While you should not let disability be a barrier to employment, you also need to be mindful that you don’t hire an applicant just ‘because’ of the disability, you hire because of talent– think outside of the disability…

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In the article ADA Standards for Website Accessibility by Jim Butler writes: The Department of Justice (DOJ) issuance of website standards is not a matter of ‘if’, but ‘when’: These regulations will require websites that provide– goods, services, facilities, privileges, accommodations… or advantages offered by state and local governments… features that allow accessibility to persons with disabilities…

On November 25, 2014, the DOJ Civil Rights Division issued its Advance Notice of Proposed Rule Making entitled ‘Nondiscrimination on the Basis of Disability: Accessibility of Web Information and Services of State and Local Government Entities and Public Accommodations: These revised regulations, when adopted, will implement website standards which the DOJ has been working on for nearly a decade… The DOJ’s proposed guidelines for website access for public accommodations are scheduled for late 2015…

The DOJ website accessibility standards will reach entities that provide ongoing goods, services that fall within the 12 categories of ‘public accommodations’ as defined in the ADA regulations, including; hotels, financial institutions, shopping centers, retail stores, restaurants, arenas… The regulations are intended to cover public accommodations that ‘operate exclusively or through some type of presence on the Web– whether hosting their own website or participating in a host’s website… but standards will not affect– personal or non-commercial websites or postings…

As guidance, the DOJ recently provided an 18-month phase-in period from publication of the final standard, e.g.; the DOJ noted that it’s considering a 6 month effective date for newly designed websites (i.e., those placed online for the first time six months after the publication of the final standard) and for new pages on existing websites, including navigation components. For existing websites or pages, the DOJ is considering a 2-year phase-in period from the publication of the final standard…

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Disregarding the ADA can be very costly,e.g.; a major corporation paid a record $6.2 million settlement after being accused of illegally firing disabled employees who were on workers’ compensation after being injured on the job, and not making ‘reasonable accommodation’ to allow them to return… Employee provisions are enforced by the Equal Employment Opportunity Commission (EEOC) or designated state human rights agency. They could seek a variety of remedies, including; reinstatement, promotion, back pay, attorney’s fees… Discrimination against disabled people is often much more subtle than something like a sexual harassment claim; you don’t get the same kind of smoking gun with disability…

Also, it’s important to remember that many states and municipalities have their own disability access laws and regulations with which businesses must comply. Although many state and local requirements are similar to the ADA, this is not always the case… A well designed website must be accessible to everyone online and meet; the World Wide Web Consortium (W3C) guidelines, the Americans with Disabilities Act (ADA) and the Rehabilitation Act of 1973 (Sections 504 and Section 508). This means all content– text, photos, videos, links… must be accessible to anyone who can navigate a website page, regardless of physical ability…

It’s clear that websites will be required to be compliant with ADA regulations, hence business should move towards ensuring that their website(s) is accessible and user-friendly to all people…