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Americans with Disabilities Act (ADA) and Accessible Online Video Requirements

  • Americans With Disabilities Act (ADA)
    Creating accessible online content can be a daunting task. Government and business entities are cautioned with accessibility compliance, but what does that mean exactly? Three U.S. laws apply to online video accessibility, but they offer little guidance as to the extent of what is actually required. The Americans with Disabilities Act (ADA) is the most far-reaching piece of accessibility legislation.

    This civil rights statute was created for the sole purpose of limiting discriminatory practices towards disabled individuals. The Americans with Disabilities Act has several sections overseeing different aspects of life and an individual’s engagement with society. They are as follows: Title I, employment; Title II, public entities; Title III, public accommodations; Title IV, telecommunications; and Title V, miscellaneous provisions. While the ADA does not specifically mention online video or video captions, it does call for “auxiliary aids” in communication. This post aims to illuminate the Americans with Disabilities Act (ADA) as it relates to online video, captioning, and legal accommodations in Title II and Title III. Keep reading to understand how courts are interpreting the law and what is coming next for web video accessibility.

    Download the brief: How the ADA Impacts Video Accessibility to get an in-depth understanding of how the ADA affects online video accessibility and captioning requirements.

    The Americans with Disabilities Act & Accessibility

    The Americans with Disabilities Act was signed into law in 1990. This act and its amendments guarantee equal opportunity for persons with disabilities in employment, state and local government services, public accommodations, commercial facilities, and transportation. Both public and private entities are affected by the ADA. Furthermore, the Americans with Disabilities Amendment Act of 2008 broadened the scope of how disability is legally defined; psychological, emotional, and physiological conditions are now included. While a disability may limit an individual’s capacity, it is the responsibility of both public and private entities to provide equal access through accommodations suiting the disabled individual’s need.

    ADA Title II: State and Local Public Entities Must Be Accessible

    Simply put, Title II prohibits disability discrimination by all public entities at the local and state level. Public entities such as schools, courts, police departments, and many others must comply with Title II regulations as outlined by the U.S. Department of Justice regardless of whether they receive federal funds.

    Title II mandates state and local governments—

    • May not refuse to allow a person with a disability to participate in a service, program, or activity simply because the person has a disability.
    • Must provide programs and services in an integrated setting, unless separate or different measures are necessary to ensure equal opportunity.
    • Must furnish auxiliary aids and services when necessary to ensure effective communication , unless an undue burden or fundamental alteration would result.
    • Shall operate their programs so that, when viewed in their entirety, they are readily accessible to and usable by individuals with disabilities.

    Read the complete list of Title II requirements

    Government accessibility requirements go beyond handicapped ramps. Today people live just as much of their lives online as in the physical world. Public entities provide valuable services and information that no citizen should be barred from accessing. Thus, web accessibility is an increasingly important issue.

    With the growing popularity of multimedia and video content, captions are an important solution to the accessibility problem. Furthermore, Title II applies to employment in public entities, meaning disabled employees must not be barred from performing responsibilities because of inaccessible processes or procedures. State and local entities need to caption videos for internal communication and training, as well as public-facing material.

    ADA Title III: Online Business Is a “Place of Public Accommodation”

    Commercial entities that operate public accommodations— such as hotels, restaurants, theaters, retail stores, and doctors’ offices— are not covered by Title II, but are covered by Title III of the ADA.

    Under Title III, no individual may be discriminated against on the basis of disability with regards to the full and equal enjoyment of the goods, services, facilities, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation. In the past, “a place of public accommodation” was defined as a physical construction of one of 12 categories. Within these constructs, the term “a place of public accommodation” was applied to a business whose operation affects the global market. Recent litigation has broadened this definition and set precedents with crucial effects for online-only businesses.

    In 2010, a suit was brought against Netflix by the National Association of the Deaf (NAD), alleging that Netflix was participating in discriminatory practices by excluding deaf and hard-of-hearing viewers from using the popular video streaming service. The complaint was that Netflix did not offer closed captions for much of their video content. The NAD asserted that this online business was a “place of public accommodation” despite lacking a physical location. The NAD also had the backing of the Department of Justice.

    The decision to move forward with a trial on these grounds was significant because it was the first time the ADA had been interpreted to apply to online-only businesses. In October of 2012, Netflix decided not to go to court and instead to settle with a legally binding consent decree.

    It is worth noting that before the settlement, Netflix attempted to argue that, due to its role as a streaming video distributor, any legal action should pertain to the 21st Century Communications and Video Accessibility Act (CVAA), which, at the time, did not call for closed captions. However, the court ruled that these two laws are not mutually exclusive and that Netflix was not protected from ADA prosecution because of compliance with the CVAA.

    In the same way that new buildings are made accessible structures from the ground up, ADA case law is obligating new online businesses to design their sites with universal accessibility as a foundation. We will talk more about the escalating importance of this later on.

    Download the brief: How the ADA Impacts Video Accessibility

    How ADA Lawsuits Impact Big Business

    As part of the settlement, Netflix agreed to caption 100% of their video by 2014. While this is a big win for NAD and the deaf community, there is a caveat: because a settlement was reached, the court was not able to deliver a final ruling, which might have further defined the legal obligations of online businesses and provided more concrete, actionable advice for accessibility.

    The history of legal proceedings involving the ADA and large corporations reveals an increasing trend in support of disability rights. Furthermore, the justice system is catching up to American media consumption habits. Many early cases involved the blind being unable to access text-oriented sites through screen readers. Today, websites have evolved and integrated multimedia, entitling deaf and hard-of-hearing users to justifiable grievances because of inaccessible video sites.

    ADA Lawsuits Impacting Web Accessibility

    2001, Martin v. Metropolitan Atlanta Rapid Transit Authority: Several blind riders alleged MARTA was violating the ADA by failing to provide bus schedule and route information in an accessible format online. Status: Court ruled in favor of the plaintiffs.

    2002, Access Now, Inc. v. Southwest Airlines Co: The plaintiffs, Access Now, Inc and Robert Gumson, argued that the Southwest Airlines public website violated the ADA because it was not accessible to the blind. The district court determined that the Southwest Airlines website and its “virtual kiosk” were not a “place of public accommodation” as defined in Title III of the ADA. Status: Court ruled in favor of the defendant .

    2006, National Federation of the Blind et al. v. Target Corporation: The National Federation of the Blind sued Target in federal court, maintaining that blind people couldn’t use the popular ecommerce site. Status: Case was settled, Target made their site fully accessible to blind users.

    2010, Earll V. Ebay: Melissa Earll brought a suit against eBay after she was barred from selling her goods on the site. eBay’s verification system for sellers requires the retrieval and submission of a password from a telephone call. Earll was unable to retrieve the spoken password because she was deaf. Status: Case was thrown out. Earll plans to appeal.

    2012, National Association of the Deaf, et al. v. Netflix: The National Association of the Deaf asserted that Netflix was barring deaf users from enjoyment of their streaming video service by not captioning content. Netflix was unsuccessful asserting that ADA Title III did not apply to their online business; instead the court ruled that Netflix was “a place of public accommodation” and as such, must follow appropriate accessibility standards. Status: Case was settled. Netflix agreed to caption all videos by 2014.

    2013, Greater Los Angeles Agency on Deafness (GLAD), et al. v. Time Warner, Inc.: GLAD is suing CNN because its streaming videos do not have closed captions. CNN’s argument that requiring video captions violates the network’s first amendment rights was rejected. The FCC has since specifically amended the CVAA, stating that requiring closed captioning on the internet does not impede the First Amendment rights. This means CNN will not be able to use CVAA guidelines as a safe harbor against ADA non-compliance. Status: Case is currently being litigated.

    Upcoming ADA Developments: Title II and Title III Will Become Broader and More Specific

    In July 2013, the Department of Justice (DOJ) will revisit Title II in an attempt to give state and local municipalities more guidance in online accessibility. The notice below highlights the increased understanding of the importance of the internet as a tool for state and local entities:

    “The Internet as it is known today did not exist when Congress enacted the ADA; yet today the Internet is dramatically changing the way that governmental entities serve the public…. Many States and localities have begun to improve the accessibility of portions of their websites. However, full compliance with the ADA’s promise to provide an equal opportunity for individuals with disabilities to participate in and benefit from all aspects of the programs, services, and activities provided by State and local governments in today’s technologically advanced society will only occur if it is clear to public entities that their websites must be accessible. Consequently, the Department intends to publish a Notice of Proposed Rulemaking (NPRM) to amend its Title II regulations to expressly address the obligations of public entities to make the websites they use to provide programs, activities, or services or information to the public accessible to and usable by individuals with disabilities under the legal framework established by the ADA.” Source: RegInfo

    Additionally, in December 2013, the Department of Justice will meet to discuss Title III, recognizing that Americans use websites for ecommerce, social media, entertainment, and online education. Because of the critical role of technology, the DOJ has broadened the ADA’s scope: “private entities of all types providing goods and services to the public through their websites operate as places of public accommodation under Title III of the ADA.” Since Americans with disabilities are prevented from accessing these sites because of inaccessible features, the ADA has yet to deliver on its promise of equal opportunity and participation in society. It will be interesting to see what provisions are expressly added to Title III to legally define ADA compliance for online-only business entities.

    ADA at a Crossroads with Online Video Accessibility

    Following the court’s rulings in support of NAD against Netflix, Assistant Attorney General Thomas E. Perez aptly commented on the shift in American media consumption habits and how the law must be interpreted to include the disabled.

    “Streaming of video programming over the Internet—by defendant Netflix and other similar providers—has revolutionized the entertainment industry; it is fast becoming the dominant means of delivering movies, television shows, and other entertainment offerings to the American public. Persons who are deaf or hard of hearing should not be prevented from fully participating in this aspect of American life. Netflix’s denial of equal access to, and full enjoyment of, its “Watch Instantly” service violates the ADA.”
    -Assistant Attorney General, Thomas E. Perez.

    The landmark Netflix settlement yields two critical takeaways. First, online video accessibility can no longer be ignored. It has become a vital business practice and legal necessity covered squarely by the ADA. Second, the court’s determination that Netflix’s streaming video service qualifies as a “place of public accommodation” potentially extends the jurisdiction of the ADA to any organization that publishes video. As the Department of Justice prepares to revisit Title II and Title III, corporations, educational institutions, and government agencies should make ready to embrace new audiences through accessible practices.

    Download the brief: How the ADA Impacts Video Accessibility

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