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Americans with Disabilities Act (ADA) and Web Accessibility Requirements for Video

  • Americans With Disabilities Act (ADA)
    The Americans with Disabilities Act (ADA) is the most far-reaching piece of accessibility legislation in the US. But since it was signed in 1990, it does not explicitly address web accessibility.

    It has been up to lawyers and judges to determine how the ADA applies to accessible online content, and while the letter of the law remains open to interpretation, the prevailing wisdom is that the ADA extends to digital information, products, and services.

    Let’s explore the ADA, how Titles II and III of the ADA apply to web accessibility, and how to make your videos ADA compliant.

    The Americans with Disabilities Act & Web Accessibility

    Enacted in 1990, this civil rights statute was created for the purpose of limiting discriminatory practices towards individuals with disabilities. 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.

    Disabilities covered under the ADA can be physical (e.g., muscular dystrophy, dwarfism, etc.), sensory (e.g., blindness, deafness, deaf-blindness), or cognitive (e.g., Down Syndrome). In 2008, the Americans with Disabilities Amendment Act 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.

    The Americans with Disabilities Act consists of five sections overseeing different aspects of life and an individual’s engagement with society:

    • Title I: employment
    • Title II: public entities
    • Title III: public accommodations
    • Title IV: telecommunications
    • Title V: miscellaneous provisions

    While the ADA does not specifically mention online video captioning, it does call for “auxiliary aids” in communication. Let’s take a closer look at Title II and Title III, both of which may be applied to web accessibility and video captioning.

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

    Title II prohibits disability discrimination by all public entities at the federal, state, and local level. For example, schools, courts, police departments, public libraries, and public universities must comply with Title II. Compliance is required regardless of whether they receive federal funding.

    Title II mandates that 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.

    Under Title II, publicly available videos, whether for entertainment or informational use, must be made accessible to individuals with disabilities. That means including captions on videos both in person and online so that deaf and hard-of-hearing people can access public services. Websites for public entities should also be fully accessible to users who are deaf, blind, or have limited dexterity.

    Title II also 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: Places of Public Accommodation

    Commercial entities that operate public accommodations — such as hotels, libraries, museums, train stations, airports, restaurants, movie theaters, retail stores, and hospitals — 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 at any place of public accommodation.

    What is a Place of Public Accommodation?

    The three criteria of a “place of public accommodation” are:

    1. It must be operated by a private entity
    2. Its operations must affect commerce
    3. It must fall within one of the following 12 categories

    12 Categories of Public Accommodation

    1. Places of lodging.
    2. Establishments serving food or drink.
    3. Places of exhibition or entertainment.
    4. Places of public gathering.
    5. Sales or rental establishments.
    6. Service establishments.
    7. Stations used for specified public transportation.
    8. Places of public display or collection.
    9. Places of recreation.
    10. Places of education.
    11. Social service center establishments.
    12. Places of exercise or recreation.

    For a more detailed list of the organizations that fall under ‘place of public accommodations,’ check the ADA’s definition section.

    Does the ADA Apply to Online Businesses?

    Before the internet become so ubiquitous, it was assumed that the ADA applied only to physical structures. But because the law doesn’t specifically state whether it applies to brick-and-mortar vs. digital “places,” it is open to interpretation.

    A string of lawsuits brought against private companies for inaccessible websites, web services, or digital communications, has created a precedent that the ADA applies to the internet. Although the precedent is not entirely consistent across all jurisdictions.

    Let’s have a look at a few important disability discrimination lawsuits to get a sense of how the ADA can apply to the web.

    ADA Lawsuits on Web Accessibility

    NAD v. Netflix (2010)

    In 2010, a suit was brought against Netflix by the National Association of the Deaf (NAD), alleging that Netflix was discriminating against deaf and hard-of-hearing viewers because not all their streaming video had closed captions.

    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 on content that had not previously aired on US television. 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.

    As part of the settlement, Netflix agreed to caption 100% of their video by 2014, and to continue captioning new content indefinitely.

    Following the settlement, 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.

    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 web accessibility policy.

    Without a definitive ruling, there is room for a difference of opinion. That’s exactly what happened in 2015 in the 9th Circuit Court of Appeals, which ruled that Netflix is not subject to Title III of the ADA because it has no physical place of business. This opinion was unpublished, meaning it is not intended to be considered legal precedent, but it certainly makes it confusing for businesses that are not sure where they stand under the ADA.

    Martin v. Metropolitan Atlanta Rapid Transit Authority (2001)

    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.

    Access Now, Inc. v. Southwest Airlines Co (2002)

    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.

    National Federation of the Blind (NFB) et al. v. Target Corporation (2006)

    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.

    Earll V. Ebay (2010)

    Melissa Earll brought a disability discrimination lawsuit 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.

    In 2013, the court dismissed her case. In April, 2015, Earll filed an appeal.

    Status: Earll continues the appeals process, stating she’s prepared to take it to the Supreme Court if necessary.

    US Equal Employment Opportunity Commission (EEOC) v. FedEx Ground (2014)

    In 2014, the EEOC sued FedEx for ADA violations because they failed to provide accommodations for deaf or hard-of-hearing employees or job applicants, such as providing American Sign Language (ASL) interpretation and closed-captioned training videos during the mandatory initial tour of the facilities and new-hire orientation.

    In July, 2015, the NAD joined the plaintiff in the litigation.

    In January, 2016, the court denied FedEx’s motions to dismiss the case.

    Status: Case is currently being litigated.

    NFB v. Scribd (2014)

    The National Federation of the Blind sued Scribd, an academic eLibrary, for violation of Title III of the ADA because their website and mobile apps were inaccessible to blind users.

    Scribd moved for a dismissal claiming that the ADA does not apply to website operators whose goods or services are not made available at a physical location open to the public. The court denied Scribd’s motion to dismiss.

    Status: Case is currently being litigated.

    NAD v. Harvard, MIT (2015)

    In February 2015, the National Association of the Deaf (NAD) filed suit against both Massachusetts Institute of Technology (MIT) and Harvard University, citing violations of the ADA and the Rehabilitation Act for the universities’ failure to provide accurate and comprehensive captioning for online course materials.

    Both universities filed a motion to dismiss the case. After the DOJ weighed in on the side of the NAD, the appeals court denied motions to dismiss, saying that there is adequate precedent in ADA case law for the suit to proceed.

    Status: Case is currently being litigated.

    Edward Davis v. Colorado Bag’n Baggage (2015)

    Edward Davis sued private company Colorado Bag’n Baggage because, as a blind man, their website was inaccessible to him. Davis cited violations of the ADA and California state anti-discrimination law.

    Status: Before the case went to trial, a judge ruled in favor the plaintiff, who won $4,000 in restitution and $100K+ in legal fees to be reimbursed. The judge ordered the company to amend its website to be accessible to the blind.

    The Future of the ADA and Web Accessibility

    Since 2010, the Department of Justice (DOJ) has been promising to revisit Title II and Title III of the ADA to provide more clarity on how it applies to the internet.

    In the DOJ’s Advance Notice of Proposed Rule Making (ANPRM), they highlight the need for such clarification:

    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.

    Recognizing that Americans use websites for ecommerce, social media, entertainment, and online education, the DOJ plans to revise the ADA’s Title III to address the accessibility of online good and services.

    The NPRM was originally scheduled for 2013, but it has been delayed repeatedly. By current estimates, it could take until 2018 for the DOJ to issue an official ruling on how the ADA applies to private, online businesses.

    Until then, lawsuits will continue to be the barometer by which to interpret the ADA and web accessibility.

    How to Make Online Video ADA Compliant

    The best way to ensure your organization is accessible to individuals with disabilities (and less likely to be the target of ADA disability lawsuits!) is to use inclusive design practices for your website and digital products.

    Some tips for making online video ADA-compliant:

    • Videos should have closed captions for deaf and hard-of-hearing viewers. Captions be accurate, complete, and time-synced with the speech. Relevant sound effects should be described in the captions, like [applause] or [doorbell rings].
    • Include an audio description and transcript for blind users.
    • Make sure you’re using a media player that has keyboard-operable controls to accommodate people who cannot use a mouse.

    Download the brief: How the ADA Impacts Video Accessibility

    This post was originally published on June 13, 2013 by Shannon Murphey as “Americans with Disabilities Act (ADA) and Accessible Online Video Requirements.” It has since been updated and revised.

One Response to Americans with Disabilities Act (ADA) and Web Accessibility Requirements for Video

  1. Outlier Babe says:

    Regarding major online shopping sites like Target and Amazon who no longer offer phone-in order service even for disabled or elderly: Should THIS be permitted?

    My sister’s hands are so disabled that she long ago chose not to join the internet world–nor should she have to. You may say “She could learn to hold a typing tool with her teeth”, or “There are voice devices”, but get real: These options aren’t for everyone, for many reasons.

    Aging, when it slows mental processing speed, can be a form of disability, related to using computers or the web. If someone can see a product they want on a browser, but can’t figure out the order app, should they be excluded from an opportunity to purchase it?

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