AUTHOR’S NOTE – You’re reading the HTML version of a chapter from the book Building Accessible Websites (ISBN 0-7357-1150-X). Copyright © Joe Clark, 2002 (about the author). All rights reserved. ¶ Back to Contents
In the many industrialized countries with human-rights or disability-discrimination laws, you are legally required to provide accessible Websites. The requirement may not be explicitly stated in relevant legislation (which invariably predates the Web), but there is ample evidence that human-rights and antidiscrimination laws apply to the Internet.
I brought up the issue of legal requirements in Chapter 2, “Why bother?”; this appendix will provide American readers with a greater understanding of the requirements of the Americans with Disabilities Act and the U.S. Section 508 requirements. I’ll also provide an analysis, in lay terms, of the only known legal case involving Website accessibility, which, while occurring in Australia, has worldwide implications.
The Americans with Disabilities Act calls for the removal of barriers to participation faced by people with disabilities in employment and entertainment, to name but two spheres of everyday life it covers.
The ADA was signed into law in 1990, meaning it predates the commercial explosion of the Internet. The applicability of this wide-ranging civil-rights legislation to the Web has been unclear, or at least little-discussed. However, the issues were quite authoritatively explained in the article “The ADA and the Internet: Must Websites be accessible to the disabled?” by Dana Whitehead McKee and Deborah T. Fleischaker. The periodical is a bit obscure, but the advice and information contained in the article are exemplary. Dana McKee, of Brown Goldstein Levy, LLP (BrownGold.com), has licenced the adaptation of her article for this book.
The version that follows includes all legal citations present in the original article that were deleted for easy reading in the printed book.
I’d like to extend my gratitude to Ms McKee for the opportunity to bring this valuable information to a broader public.
The ADA and the Internet: Must Websites be accessible to the disabled?By Dana Whitehead McKee and Deborah T. Fleischaker. Published in the Maryland Bar Journal, Nov.–Dec. 2000, v33 i6 p34–36. Reprinted with permission.
Many companies today either choose to disregard the issue of accessibility or simply forget to consider the disabled when designing and updating their Websites. This article examines how Title III of the Americans with Disabilities Act of 1990 (ADA) [42 U.S.C. §§12181–12189 (1994)] can and will have a dramatic impact in making the Internet accessible to the disabled.
Title III of the ADA
The ADA is a remedial statute designed to eliminate discrimination against individuals with disabilities and “to assure equality of opportunity, full participation, independent living, and economic self-sufficiency for such individuals” 42 U.S.C. §12201(a)(8). The scope of the statute is broad and prohibits discrimination in:
- employment (Title I, 42 U.S.C. §§12111–12117);
- public (i.e., government) services, activities, and transportation (Title II, 42 U.S.C. §§12131–12161);
- public accommodations and services operated by private entities (Title III, 42 U.S.C. §§12181–12189); and
- telecommunications services (Title IV, 47 U.S.C. §225).
Of these sections, only Title III is applicable to private entities whose operations on the Internet affect commerce outside of the employment context.
Title III provides that:
No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation [42 U.S.C. §12182(a)].
To have a cause of action under Title III of the ADA, usually the plaintiff must prove that:
- he or she is disabled;
- the defendant is a “private entity,” which owns, leases, or operates a “place of public accommodation”;
- he or she has been denied the opportunity to participate in or benefit from the goods, services, facilities, privileges, or advantages, or has been given the opportunity to participate, but in a manner not equal to that afforded to others, or the benefit is separate and different from that afforded to others; and
- the defendant has failed to make reasonable or necessary modifications which would not fundamentally alter the nature of the public accommodation [42 U.S.C. §12182(a) and (b)].
If the challenged discrimination is caused by a communications barrier, the plaintiff must also prove the existence of such barrier and suggest or prove a readily achievable method of removing the barrier [42 U.S.C. §12182(b)(2)(A)(iv)]. Cases such as Pascuiti v. New York Yankees, 98 Civ. 8186 (SAS), 1999 U.S. Dist. LEXIS 18736 (S.D.N.Y. Dec. 6, 1999), and Gilbert v. Eckerd Drugs, No. Civ. A. 97-3118, 1998 U.S. Dist. LEXIS 10529, No. Civ. A. 97 3118 (E.D. La. July 8, 1998), reiterate those principles.
The ADA’s Application to the Internet
The application of the ADA to owners of Internet service providers and Website owners is likely to be fraught with litigation over the issue of whether they own, lease or operate a “place of public accommodation.” Many people, including some courts (for example, Parker v. Metropolitan Life Ins. Co., 121 F.3d 1006, 1010–11 [6th Cir. 1997]), equate a place of public accommodation as a physical structure, such as a school, restaurant, or hotel. However, a careful reading of the statute and the regulations promulgated under the ADA clearly suggests that the definition is not so limited.
Title III does not define “place of public accommodation.” Instead, it provides a laundry list of the type of private entities that would be considered public accommodations if their operations affect commerce. This list, set forth in 42 U.S.C. §12181(7), includes places of lodging, establishments serving food or drink, places of public gathering, sales or rental establishments, service establishments, stations used for specified public transportation, places of public display or collection (i.e., museum or library), places of recreation, places of education, social service establishments, and places of exercise or recreation.
The regulations, 28 C.F.R. §36.104, however, define a “place of public accommodation” as a “facility, owned by a private entity, whose operations affect commerce and fall within [the statutory] categories.” The term “facility,” as used in this regulation, is not limited to buildings or structures, but includes “sites, complexes, equipment, rolling stock or other conveyances, roads, walks, passageways, parking lots, or other real or personal property.”
Most Websites seem to fall squarely within the definition of a “place of public accommodation.” Many are owned by non-government entities for commercial gain and often fall within the broad categories of sales, rental, or service establishments or places of recreation or education.
Websites are also “facilities” as defined by the regulations. They are personal property to their owners and, as the name implies, they are “sites.” Indeed, according to the federal district court in Massachusetts (Digital Equip. Corp. v. Altavista Tech., Inc., 960 F.Supp. 456, 459 n.2 [D. Mass. 1997]), a Website is a group of related documents that share the same address on the Web. These related documents that comprise the Website are stored in a space that is either leased or owned on a server, as the court, in Shea v. Reno, 930 F. Supp. 916, 929 (S.D.N.Y. 1996); aff’d, 521 U.S. 1113 (1997), found.
Although no court has yet decided whether a Website is a place of public accommodation, at least one court has found it to be so, though not as part of a specific case on that topic. In Doe v. Mutual of Omaha Ins. Co., 179 F.3d 557, 559 (7th Cir. 1999), the Seventh Circuit, in describing the scope of Title III, noted:
The core meaning of this provision... is that the owner or operator of a store, hotel, restaurant, dentist’s office, travel agency, theater, Website, or other facility (whether in physical space or in electronic space...) that is open to the public cannot exclude disabled persons from entering the facility and, once in, from using the facility in the same way that the nondisabled do.
(Emphasis added.) Like the Seventh Circuit, the United States Departments of both Justice and Education have indicated that Websites are places of public accommodation. See Cynthia D. Waddell, The Growing Digital Divide in Access for People with Disabilities: Overcoming Barriers to Participation (visited July 10, 2000) [and “Achieving Web Site Accessibility in State Government”].
Defenses to Internet ADA claims
Nevertheless, businesses that are unwilling to make their Websites accessible may argue that Title III should not be applicable to Internet commerce. In support of this argument, they will most likely claim that the services or benefits that are inaccessible to the disabled through Websites or Website portals (i.e., the gateway page to the World Wide Web) do not fall within the scope of the ADA because these sites are not places utilized by physical access.
This argument may meet with some limited success. The courts are divided on whether a “public accommodation” under Title III is applicable in nonphysical access cases. The issue has arisen most often in two contexts: the application of Title III to membership organizations and to insurance benefits. Several courts have required that there be a close nexus with a physical structure for Title III to apply. In Ford v. Schering Plough Corp., 145 F.3d 601, 612-14 (3d Cir. 1998), the court held that disability benefits provided by employer were not covered by Title III because no nexus existed with the insurer’s office. Similar nexus requirements were found essential by the following courts: Parker v. Metropolitan Life Ins. Co., 121 F.3d 1006 (6th Cir. 1997); Schaff v. Association of Educ. Therapists, No. C94-03315 CW, 1995 U.S. Dist. LEXIS 21806 (N.D. Cal. June 13, 1995); Pappas v. Bethesda Hosp. Ass’n., 861 F. Supp. 616 (S.D. Ohio 1994); and Welsh v. Boy Scouts of Am., 993 F.2d 1267, 1270-71 (7th Cir. 1993).
Other courts, however, have not interpreted the term “public accommodations” to require a physical structure or a nexus between the physical structure and the discrimination for Title III to be applicable. For example, in Pallozzi v. Allstate Life Ins. Co., 198 F.3d 28, 32 (2d Cir. 1999), the court stated: “Title III’s mandate that the disabled be accorded ‘full and equal enjoyment of the goods [and] services... of any place of public accommodation’ suggests to us that the statute was meant to guarantee them more than mere physical access.”
The court, in Walker v. Carnival Cruise Lines, 63 F. Supp. 2d 1083 (N.D. Cal. 1999), concluded that when the private entity falls squarely within the ADA definition of public accommodation, no issue with physical access is necessary. Other courts have also concluded that the ADA’s access requirements apply to more than physical structures. The court, in Lewis v. Aetna Life Ins. Co., 982 F. Supp. 1158, 1165 (E.D. Va. 1997), vacated on other grounds, 180 F.3d 166 (4th Cir. 1999), may have said it best: “It is difficult to believe that Congress intended to withhold the protections of the ADA from the millions of disabled persons who buy their goods by telephone, mail order, or home delivery without ever entering the physical premises of a business establishment.”
Arguably, Websites and Website portals are facilities under the ADA regulations, and therefore fall within the scope of a “place of public accommodation.” The fact that the disabled only access the site electronically, as opposed to physically entering an office, should not result in the ADA’s being inapplicable. To hold otherwise would mean that stores like the Gap could legally discriminate against the disabled on the Internet by having inaccessible Websites, but would be prohibited from having inaccessible stores in local shopping centers. Certainly Congress did not design the ADA for such disparate outcomes.
Private-entity defendants may also try to avoid liability under Title III under the theory that the necessary modifications are “unreasonable,” would “fundamentally alter” the nature of the public accommodation, would result in an “undue burden,” or are not “readily achievable,” i.e., “easily accomplishable and able to be carried out without much difficulty or expense” [42 U.S.C. §§12181(a), 12182(b)(2)(A)]. In most cases, none of these defenses should be persuasive because the necessary modifications are quite simple to achieve, are not cost prohibitive, and should not result in fundamentally altering the nature of the Website.
Website designers and owners do not even have to incur any costs in determining how to make Websites accessible to the disabled or whether an already existing site has accessibility problems; they may consult World Wide Web Consortium Web Accessibility Initiative documents or use the Bobby validation service. While these are only two of the cost-effective options available, they serve to demonstrate that public Websites can be made accessible without undue burden.
Although no court has yet decided that the Internet and Websites are public accommodations covered by Title III of the ADA, there is little doubt that such a decision will ultimately be made. To require businesses on the street to comply with the ADA while permitting those in cyberspace to freely discriminate against the disabled would defeat the purpose of the ADA. Therefore, to avoid potential costly litigation, owners of Websites and Website portals should make sure that their sites are constructed so that they are accessible to the disabled.
I hope the foregoing article is useful to readers concerned with complying with U.S. laws.
Note that, as ever, the fear of getting sued should not be the impetus to provide accessibility. Besides, there is but a single known case of anyone’s having actually been sued, as we shall now see.
At time of writing, only one legal case concerning Web accessibility is known: Maguire vs. SOCOG . A single individual was triumphant in pursuing a complaint of Web inaccessibility. His adversary: Nothing less than the Olympic movement itself, as manifested in the Sydney Organizing Committee for the Olympic Games.
This case teaches us that the legal need for accessibility is so clear-cut, and the means of achieving basic accessibility so straightforward, that even an unspeakably wealthy and powerful international organization can lose in a judicial proceeding.
In Australia in June 1999, Bruce Maguire lodged a complaint with the Human Rights & Equal Opportunity Commission (HREOC) under a law called the Disability Discrimination Act. His complaint concerned the Website of the Sydney Organizing Committee for the Olympic Games (SOCOG), which Maguire alleged was inaccessible to him as a blind person.
According to the complaint, Maguire, unlike most blind people online, does not use a screen reader to read aloud the elements of a Web page. Instead, he uses a refreshable Braille display. But neither technology can render into voice an image that lacks a text equivalent. Nearly all Web pages online have some kind of graphics, including high-profile sites like those associated with major sporting events.
Maguire contended that significant parts of the SOCOG Website, Olympics.com, were inaccessible to him.
On 24 August 2000, the HREOC released its decision and supported Maguire’s complaint, ordering certain access provisions to be in place on the Olympics.com site by 15 September 2000. SOCOG ignored the ruling and was subsequently fined A$20,000.
To respond to the objection that this case, having taken place “far away” in Australia, is unrelated to Web design in other nations, I would suggest examining the similarities among the Disability Discrimination Act, the Americans with Disabilities Act, and the Canadian Human Rights Act, not to mention provincial, state, and territorial human-rights codes. The legal principles of unequal treatment (“discrimination”; “unfavourable” treatment) and unjustifiable hardship (“undue” hardship or “burden”) are effectively identical in Australia, the U.S., and Canada, if not elsewhere, and the case of Maguire vs. SOCOG will inevitably come into play as precedents for legal cases worldwide.
Maguire had tangled with SOCOG before on matters unrelated to the Web, and those complaints are referred to extensively in the decision. However, the crux of his complaint involved a demand that the Olympics.com site provide the following accessibility features:
alttext on all images and imagemap links on the Website
SOCOG attempted to derail the proceedings through several means. One involved withholding information Maguire claimed he needed to understand the size and scope of the task of improving accessibility at Olympics.com.
The information Maguire asked for included:
HREOC commissioner William Carter stated flatly:
I pause to mention that the relevant information has never been provided nor had it been provided by the time of the hearing on 8 and 11 August 2000. By letter dated 4 August 2000, the solicitor for [SOCOG] sought relief from the need to provide the requested information on the basis that it was “highly commercially sensitive information within the knowledge of SOCOG and its contractor.” Its contractor was IBM.
Commerce takes place in a competitive system of sellers and buyers. IBM and SOCOG had outright monopolies on Sydney Olympic Websites. There were no competitors – even licensed television networks’ Web ventures weren’t in the same league. There was no competition per se in the way there is competition between Ford and Toyota. While it could be argued that IBM’s competitors might have stolen its ideas, Maguire did not seek public release of the information, merely release to him and his lawyer. The claim of “commercially-sensitive information” was clearly false.
Later, SOCOG claimed that “ ‘the provision of the HTML source code of the Results Pages’ would not be made available because it was ‘highly commercially sensitive information.’ ” It is unclear if SOCOG or HREOC didn’t understand the lingo or if this was meant literally. Anyone could view the source code for the results pages once the site went live; it would become the worst-kept secret in the world. What we wouldn’t see is the underlying database programming, which in itself is not necessarily accessible or inaccessible. SOCOG’s claim could have been dismissed immediately if it was meant literally. If not, perhaps there was some kind of intention to confuse.
Further, although SOCOG advanced this “commercially sensitive” defence, HREOC stated it could have accommodated SOCOG by coming up with some means of “protect[ing] the commercial sensitivity of the information, assuming of course the information qualified for that description.”
Maguire filed his complaint on 7 June 1999 (15 months and eight days before the start of the Sydney 2000 Olympics). The decision notes that “on a visit to the SOCOG Website on 17 April 2000, some changes had been made to the site since his original complaint but that in certain other respects the site remained inaccessible.”
At the hearing for this complaint, SOCOG claimed the
alt-text problem had been solved “and that access to the Index of Sports from the Schedule was available and had always been available by a different route; namely, by entering the URL for each sport directly into the Web browser.”
In other words, SOCOG attempted to suggest that typing in a lengthy URL could provide equal access. SOCOG did not, however, describe any circumstances in which sighted people would have to type in full URLs.
In Australia, under the Disability Discrimination Act, “It is unlawful for a person who... provides goods or services, or makes facilities available, to discriminate against another person on the ground of the other person’s disability... in the terms or conditions on which the... person provides the other person with those goods or services...; or in the manner in which the... person provides the other person with those goods or services or makes those facilities available to the other person.”
Just on the face of it, the requirement to type in URLs if you’re blind but merely click a link if you’re sighted constitutes discrimination.
“The provision of the Website was a service relating to the provision by the respondent of information relating to the largest and most significant entertainment or recreation event in the history of this country,” the decision holds.
SOCOG attempted to claim that the site was “promotional.” As we all know, “promotional” Websites don’t cost tens of millions of dollars and attract six billion hits over their lifespans, as SOCOG would claim in the proceeding. HREOC didn’t buy it, fortunately: “The provision of information by the respondent via its Website is, in the Commission’s view, a service relating to the entertainment which the respondent will provide to the world in the course of the Sydney Olympic Games.”
In antidiscrimination laws throughout the Western world, anyone alleged to have discriminated is not required to remedy the discrimination if doing so would dramatically alter the nature of business or put the party in financial jeopardy. In other words, there is a test of reasonableness, extent, and expense when assessing disability discrimination. It is possible, therefore, for a body like the HREOC to conclude that there was disability discrimination but that the way to fix it is too complicated or expensive.
SOCOG argued that retrofitting its site for accessibility would cause unjustifiable hardship, estimating the cost at A$2.2 million.
World Wide Web Consortium accessibility guidelines, SOCOG maintained, were too new to graft onto Olympics.com, which had already undergone “substantial implementation.” HREOC countered that Olympics.com “is and has been in the process of continual development. Indeed it is alleged, particularly in relation to the provision of
alt text, that this has been ongoing. A letter from IBM... asserts that
alt text was being added to images on the SOCOG Website and ‘expected’ that this task ‘would be completed by 8 August 2000.’ ”
Obviously, if the guidelines were truly so new and the site so substantially complete, it would not have been possible to add so many
alt texts, which, the decision fails to note, have been a feature of HTML for years (since at least HTML 2.0, dating from December 1996, “based upon current practice in 1994”) and are a requirement of HTML 4.0, issued in December 1997.
Yet Maguire and an expert witness explained that not all images had been adapted with
alts, and there is no discussion of the adequacy and understandability of the
HREOC agreed with Maguire that typing in sport-specific URLs did not constitute favourable (“equal”) treatment. As Maguire plainly put it, “that is not the way that people use Web pages.” The Commission agreed: “[T]he proposed alternative is both unorthodox and cumbersome and need not be resorted to by a sighted person.”
It must also be pointed out that the URLs in question are tongue-twisters. As examples, five sports have very long URLs differing by exactly one character. Can you guess what sport relates to each URL below?
In order, the URLs relate to canoe/kayak slalom, canoe/kayak sprint, mountain biking, road cycling, and track cycling. You can’t assume some kind of acronym system at work: “Canoe/kayak slalom” and “canoe/kayak sprint” both share the acronym CKS, but the URLs use CS and CF.
SOCOG, in all seriousness, advanced the manual typing-in of mile-long, hard-to-remember, confusable URLs as an accessibility measure.
Tables are a recurring bugbear for blind Web-surfers. Not only are tables used for page layout, but when put to use in their putative intended sense, to structure tabular data, Web authors need to add coding to make navigating the table understandable to a screen-reader or Braille user.
However, that task is quite manageable. It’s difficult to do using authoring programs like Dreamweaver, unless your site is so sprawling and enormous that you’re writing your own HTML-generating tools in the first place, as SOCOG apparently did. In that case, it’s a question of adapting the software to produce accessible code. There is no evidence that SOCOG did so.
HREOC states flatly that “the Results Table remains and will remain inaccessible to the complainant.”
It gets worse for SOCOG:
In the Commission’s view, the respondent has discriminated against the complainant... in that the Website does not include
alttext on all images and imagemap links, the Index to Sports cannot be accessed from the Schedule page, and the Results Tables provided during the Games on the Website will remain inaccessible.
Because of the manner in which that information was made available, it could be accessed by a sighted person. Because of the manner in which that information was made available it could not be accessed by a blind person because of his or her disability. This meant that, in respect of the same information, the respondent, in the manner in which it used its computer technology to service the needs of the public to have access to that information, made it available to sighted persons, but it made it unavailable or only partly available to a blind person because of the latter’s disability. It follows that, because of his or her disability, the blind person was treated less favourably by the respondent than the sighted person.
SOCOG’s claims include:
- The site currently consists of 6,000 pages and approximately 55,000 pages will be generated in the course of the Games.
- There are 37 sports Web page templates, each with approximately 35 results templates – in total 1,295 templates for results alone.
- The tables of results will contain “wrapped text within cells.”
- There will be approximately six billion hits on the site and the site needs to be fast and highly responsive.
- To reformat the site and its contents in a way which will make the Website accessible to the complainant will in effect require the development of a new or separate site.
- Extensive changes to infrastructure are required; there is a requirement for specialised skills which are limited and expensive; there will be possible adverse impacts upon the support and maintenance systems.
- One person working eight-hour business days would require 368 days to complete the task properly.
- $2.2 million of additional infrastructure would be required to separately host the additional designs necessary to an accessible Table of Results.
Yet the Commission, based on the testimony of expert witnesses and other findings, dismissed most of SOCOG’s claims:
- The number of templates is significantly less than 1,295 and the reformatting of the templates will take considerably less than the two hours for each alleged by the respondent. A more realistic estimate for the minor changes required is ten minutes each; nor is there the need for unique manually-generated formats.
- No new infrastructure will be required because it is allegedly in place.
- A team of one experienced developer with a group of 5–10 assistants could provide an accessible site to [Web Content Accessibility Guidelines] Level A compliance in four weeks.
- Wrapping in each cell can be met by using a simple device namely the inclusion of an invisible end-of-cell character which would indicate to a blind person the end of the text in each cell.
- The cost of making the site accessible is a modest amount.
- The number of templates has been estimated at 357 for 28 sports. Additional templates would be required for 37.
It is not clear what HREOC means by “an invisible end-of-cell character,” unless they refer to
</td>. A conversation with one of the expert witnesses previously called for the trial clarifies for this book that the initial (mistaken) assumption was that tables would have to be linearized for Maguire to understand them, which turned out not to be the case; standard accessible table HTML would suffice.
In any event, it is manifestly clear that adding accessibility tags, while more complicated in a retrofit than it would be to add them in the first place, is not qualitatively different from adding all the other tags necessary to make a large database-driven Website work. The fact that some of those tags might be reproduced six billion times during the course of the Olympics merely means that six billion accessible pages will be transmitted.
And on the topic of retrofitting...
Testimony from two expert witnesses was used: Tom Worthington, listed in his online bio as “a Visiting Fellow in the Department of Computer Science at the Australian National University and independent electronic business consultant,” and Jutta Treviranus of the University of Toronto Adaptive Technology Resource Centre. (I sat in Jutta Treviranus’ office and chatted with her about the case for this book).
In Ms Treviranus’ view, if accessibility had been considered by the respondent when the site was being developed it could have been totally achieved in less than one percent of the time consumed in the site’s development. She has regularly visited the site and in her view it remains inaccessible in material respects. For instance in her view in some respects the situation has worsened because additional graphic material has been added without
In respect of the Schedule page, which in her view is completely inaccessible, it could be corrected by a very simple change which would take less than 1.5 hours. Mr. Worthington expressed the view that the correction would take less time than the time which was consumed in the hearing talking about it. In Ms Treviranus’ view it would be unnecessary to uniquely and manually generate a new format in respect of the suggested 1,295 templates. No new infrastructure would be required; the existing team supplemented with some additional support for a short period would be sufficient. There would be no need to develop and implement a new navigation design. What the respondent suggested would take 25 business days could be effectively completed within a few hours.
SOCOG approached the whole issue with such evident scorn and dismissiveness that it did not even train its own consultants well enough to provide an adequate defence.
Mr. Brand and Mr. Smeal... were engaged only in the days immediately prior to the hearing commencing on 8 August 2000 [and] were required to prepare and give their evidence from positions of relative disadvantage. Their knowledge and experience with the site was necessarily very limited and the evidence of each was effectively based on the need to validate certain information and conclusions given to them by Mr. Max Judd of IBM and Dr. Ian Reinecke, the Chief Information Officer of SOCOG. Neither were able to confirm the information given to them nor were Mr. Judd nor Dr. Reinecke called to give evidence.
How’s that for kneecapping yourself?
According to the Commission:
The clear inference can be drawn from the facts and circumstances that [SOCOG] never seriously considered the issue and only when the hearing was imminent did it attempt to support its rejection of the complainant’s complaint by resort to a process which was both inadequate and unconvincing.
Among other things, SOCOG engaged in delaying tactics and then used the excuse that, even if required to do so, it would not have enough time to make Olympics.com accessible. The delaying tactics included:
- Its failure/refusal to provide the information sought by the complainant in its letter dated 31 March 2000.
- Its failure to provide the statements of its witnesses as directed by the Commission.
- Its failure/refusal to reply to correspondence or to return telephone calls in the period 17 May 2000 [to] 20 June 2000.
- Its attempt to vacate the hearing dates set for 3 and 4 July 2000.
- Its stated intention to pursue an unmeritorious point in the Federal Court at the hearing on 3 July 2000 and its abandonment of the same just weeks later.
- Its failure to provide statements of its expert witnesses on 4 August 2000 – less than one week prior to the adjourned hearing.
- Its unsworn attempt to establish the truth of facts alleged by it as the basis for its claim of unjustifiable hardship on the very last date set for hearing of the matter.
We’re used to corporations attempting to bulldoze impoverished litigants by outspending them, but in this case SOCOG attempted to win the case by stalling for time. It didn’t work.
[I]t is necessary to confirm the view that on the acceptable evidence of Mr. Worthington and Ms Treviranus there is no good reason to conclude that the sought-after access cannot be available to the complainant either by or during the course of the Sydney Olympic Games.”
SOCOG was ordered to engage in the following by 15 September 2000:
alttext on all images and imagemap links on its Website
- Providing access to the Index of Sports from the Schedule page
- Providing access to the Results Tables to be used on the Website during the Sydney Olympic Games
SOCOG refused to comply with the order and was later ordered to pay Bruce Maguire $20,000 for its refusal to comply.
According to the decision making that cash award:
[Maguire] has persistently insisted that his disability should not be the cause of his having to accept an inferior outcome by reason of his disability. His competence at reading Braille and his application of that skill to computer technology is obviously of a high order.
Accordingly, his expectations of being able to access information from [SOCOG’s] Website were, not surprisingly, high – certainly as high as that which a sighted person with his skills could expect. I am satisfied that the respondent from the outset was dismissive of the complainant’s concerns....
This response, I am satisfied, was very hurtful for him; the suggestion that he enlist the aid of a sighted person to assist him was wholly inconsistent with his own expectations and what he himself, unaided, had been able to achieve, both at university level and in business, in spite of his disability. To dismiss him and to continue to be dismissive of him was not only hurtful, he was also made to feel, I am satisfied, various emotions including those of anger and rejection by a significant statutory agent within the community of which he himself was a part.
In my view this element of dismissiveness in the respondent’s original response was not relieved as the inquiry process under the DDA proceeded within the Commission. In respect of this part of the complaint it apparently persisted and his original pain was somewhat aggravated by that fact....
I am comfortably satisfied that his limited access to the Website caused him considerable feelings of hurt, humiliation and rejection. One cannot overstate the consequential effect upon him of his having to cope with the persistent need to counter what he saw as a negative, unhelpful and dismissive attitude on the part of an organization charged with the presentation of the most notable sporting event in the history of this country. This, in my view, was aggravated by his final inability to obtain the desired access to the Website in spite of his having established to the satisfaction of the Commission the fact that he had been unlawfully discriminated against.
The public statements of the respondent subsequent to 24 August 2000 were for him the final indignity. He... continued to feel the impact which the respondent’s earlier dismissive attitude had had upon him. This was, no doubt, aggravated by the fact that the published statement of the respondent in justification of its noncompliance included material which had been specifically rejected by the Commission....
In the Commission’s view his hurt and earlier rejection has persisted, and in spite of an apparently successful outcome he had been left with feelings of ultimate failure. It is obviously difficult for those of us not similarly disabled to share his feelings and emotions. As best one can assess, including from his presentation to the Commission, his hurtful rejection by the respondent was very considerable in his case.
Maguire stated for this book that SOCOG did indeed pay the fine, a surprising outcome – it was easy to imagine SOCOG’s simply waiting until it went out of business (nearly a year after the Sydney Olympics closed) in order to avoid payment.
To reiterate, in the case of Maguire vs. SOCOG , the little person won. While the Sydney Organizing Committee for the Olympic Games acted in an arguably unprofessional and certainly a dismissive manner, the allegedly substantive reasons it advanced for denying accessibility were conclusively repudiated by Australian authorities and expert witnesses.
Curiously, IBM, SOCOG’s Web contractor, maintains an accessibility Website (at IBM.com/able/) and a full-time staff who do nothing but work on software, hardware, and Web accessibility. Many of those staff were helpful in writing this book. IBM has a reasonably salutary record in accessibility products, having developed IBM Home Page Reader, a screen-reader analogue specialized for surfing the Web. Yet its partnership with SOCOG gave the appearance of a corrupting influence, making IBM complicit in SOCOG’s actions in denying accessibility to blind users of its Olympics.com site.
In any event, in the Maguire case we now have a firm worldwide precedent that inaccessible Websites can be and are illegal.
During the production of this book, the U.S. government enacted the so-called Section 508 requirements, under which U.S. government agencies (with uncommon exceptions) and a limited range of nongovernmental entities and outside vendors must ensure that their Websites are accessible. (Section 508 has many other provisions that apply outside the Web.)
The Section508.gov Website tells us:
Section 508 refers to a statutory section in the Rehabilitation Act of 1973 (found at 29 U.S.C. 794d). Congress significantly strengthened Section 508 in the Workforce Investment Act of 1998. Its primary purpose is to provide access to and use of Federal executive agencies’ electronic and information technology... by individuals with disabilities.
Ohh-kaaay. Doesn’t that sound like a parallel universe of accessibility requirements, one that tends to compete with the Web Content Accessibility Guidelines?
That is partly true. When it comes to Web design, Section 508 has 16 paragraphs headed as follows:
Section 508 requirements are either:
However, here is what the Access Board tells us about the differences between 508 and the WCAG:
The final rule does not reference the WCAG 1.0. However... paragraphs (a) through (i) incorporate the exact language recommended by the WAI in its comments to the proposed rule or contain language that is not substantively different than the WCAG 1.0 and was supported in its comments.
Paragraphs (j) and (k) are meant to be consistent with similar provisions in the WCAG 1.0; however, the final rule uses language which is more consistent with enforceable regulatory language. Paragraphs (l), (m), (n), (o), and (p) are different than any comparable provision in the WCAG 1.0 and generally require a higher level of access or prescribe a more specific requirement.
The Board did not adopt or modify four of the WCAG 1.0 Priority 1 checkpoints....
A Website required to be accessible by Section 508 would be in complete compliance if it met paragraphs (a) through (p) of these standards. It could also comply if it fully met the WCAG 1.0 Priority 1 checkpoints and paragraphs (l), (m), (n), (o), and (p) of these standards....
The Board has as one of its goals to take a leadership role in the development of codes and standards for accessibility. We do this by working with model code organizations and voluntary consensus standards groups that develop and periodically revise codes and standards affecting accessibility. The Board acknowledges that the WAI has been at the forefront in developing international standards for Web accessibility and looks forward to working with them in the future on this vitally important area. However, the WCAG 1.0 were not developed within the regulatory enforcement framework.
So there you have it: Section 508 standards are different from the Web Content Accessibility Guidelines because – among other reasons not discussed here, many of them substantive and reasonable – the Guidelines just are not the way the U.S. government does things.
The general viewpoint among accessibility advocates is “As Goes the U.S. Government, So Goes the Private Sector.” The assumption is that the requirements of Section 508 will become a de facto standard of accessibility for the Websites of all vendors that sell to the U.S. government, no matter how small – or how large. The application of those standards will then spread to all parts of the Websites of such vendors (even parts unrelated to the U.S. government) and to Websites of entities that have no dealings whatsoever with the government. While this is all conjecture, it seems like plausible conjecture to me.
Further, a number of U.S. states are understood to be in the process of adopting regulations essentially or actually identical to those of Section 508, and some countries outside the U.S. are taking it upon themselves to arrive at accessibility guidelines for their own countries, though they are not necessarily based on 508.
If your company has business dealings with any of these governments, you may be required to certify not only that the work you do for their Websites meets these requirements but that your own sites meet them.