Inside Scoop on the ADA: Q&A with Someone Who Helped It Pass into Law
The Americans with Disabilities Act was passed in 1990, thanks in large part to Senator Tom Harkin of Iowa who sponsored and authored the bill.
In a recent webinar, we were lucky to be joined by Senator Harkin’s former chief aide, Bobby Silverstein, who is a considered a “behind the scenes architect” of the law.
Old Law, New Tech
The bill was written before the existence of technology currently used in every-day life, the internet for example, and has never undergone a language refresh to address modern technology.
While Titles II and III of the ADA are scheduled for renewal, the process is slow going and we probably won’t seen any updates until late 2017 or 2018. In the meantime, organizations still have lots of questions about how the law applies to today’s technology.
In the webinar Q & A session, Bobby addressed some of those questions stressing that the ADA was meant to keep pace with newer technologies when it was written.
Watch the full webinar or continue reading for condensed highlights from the Q & A:
Do you have any recommendations on steps higher ed institutions should be taking while waiting for the Department of Justice (DOJ) updates to web accessibility requirements of the ADA?
“ What would I do? I would [develop] a strategic plan on accessibility. ”
Former Chief Aide to Sen. Tom Harkin
BOBBY SILVERSTEIN: I would urge all of you to look at Dudley and USA versus Miami University, which was published on the DOJ website on October 17, 2016.
And why? Because [they] look at not only the standards for requirement, but they [distinguish] between new, preexisting, legacy, archives, third party, and prospective [applications to Miami University’s web content]. So they are beginning to give you a signal on where they’re going.
What would I do? I would [develop] a strategic plan on accessibility.
I would involve people with disabilities, maybe civil rights folks, as well as your human resources folks and your information and communication technology experts.
I would be doing a needs assessment, a survey, of where you are.
I would be [prioritizing]. And what would some of my priorities be? They would clearly be things that are most accessible and important to all people, including people with disabilities. And I would be looking at new issues — newly leased, newly purchased [technology].
I would be [asking], are you updating, are you refreshing your website or other systems? Just at least start with what is newly purchased, newly leased, what is updated, and what’s being refreshed.
Why do you consider the Miami University settlement “landmark” compared to other university cases?
BOBBY SILVERSTEIN: The reason is because it is the most comprehensive of any that I have read.
I have read all 170 settlement agreements. And this one has more specificity with respect to what types of content we’re talking about and what I call the Methods of Administration.
[The settlement] has more detail on the requirement to have an accessibility policy, have an accessibility committee, who should be on it, what kind of training should be provided, what should be in your procurement procedures, what kind of testing is appropriate, what kind of auditing and evaluating. There’s much more detail with respect to these issues than any others that I have reviewed.
It sounds like the DOJ is taking a vested interest in web accessibility, but they just pushed back the decision to update Title II. Do you have any insight into why they’re holding off?
BOBBY SILVERSTEIN: I do not have any inside information.
It’s not only Title II, state and local government. In 2010, they issued an Advanced Notice of Proposed Rulemaking (ANPRM). And in 2016, instead of issuing a proposed regulation, they did a Supplemental Advanced Notice of Proposed Rulemaking (SANPRM). Why? I cannot tell.
This is obviously a very important […] gateway civil rights issue. And all I can assume is they want to make it right.
They’ve also delayed Title III, public accommodations, and rather than doing them together, whether it’s [coming in] 2017 or 2018, we do not know. It remains to be seen.
If an organization purchases a third party product that is not accessible, who is responsible for the accessibility of that product — the third party vendor or the company who purchased it?
BOBBY SILVERSTEIN: If we go back to one of the key precepts of ADA, it is [communicated] that you cannot do indirectly that which you are prohibited from doing directly.
In other words, you cannot enter into a contract or other arrangement that has the purpose or effect of denying opportunity. So you cannot say that you’re technically not accountable.
Now what some of these settlement agreements are doing, as I read to you, is that they are requiring the covered entity– the college, the employer, the public accommodation– to have a contract with the vendor which holds the vendor accountable. The fact is between the covered entity and the vendor, from an ADA perspective, the covered entity is responsible.
Do you mean that we’re at risk if we don’t make our site fully accessible even if there hasn’t been an accommodation request?
BOBBY SILVERSTEIN: That is exactly what I’m saying.
As a small business looking to get government contracts, does my website need to be accessible to all assistive devices? And are there standards we should be following?
BOBBY SILVERSTEIN: We have another policy called Section 503 of the Rehabilitation Act.
That is a provision for nondiscrimination and affirmative action by federal government contractors.
It says, “Their accommodation obligation extends to the contractor’s use of electronic and online application systems. If a contractor uses such a system, it must provide necessary accommodations to ensure that the individual who is not able to fully utilize the system is nonetheless provided with equal opportunity. Though not required, it is of best practice for the contractor to make its online job application system accessible and compatible with assistive technologies.”
It goes on to say, “The contractor must ensure that applicants and employees with disabilities have equal access to its personnel processes, including those implemented through ICT.”
It’s required to make sure there is effective opportunity to accommodations and are encouraged to make this information accessible, even if no specific request [is made]. [They also] make reference to Web Content Accessibility Guidelines (WCAG) 2.0 Level AA.
We’re running into issues where current technology doesn’t allow for the accessibility features we need to implement. Do you know what the DOJ’s take would be on this?
BOBBY SILVERSTEIN: I do not. And that’s something that I would probably be talking to the experts [about]. Even though the comment period is closed, I would be directing that question to the DOJ.
Because I am sure if there’s an issue that is critical and applies across the board, they will want to know what it is, even if the comment period is officially closed.
How does the information presented today relate to the Accessible Instructional Materials in Higher Education Act for which a committee is being formed to move the act through Congress?
BOBBY SILVERSTEIN: That is a bill that was just recently introduced. It has two co-sponsors. It has been referred to the Committee on Education and the Workforce in the House of Representatives. So that would have to go through the regular course of the legislative process.
Miami University and [a long list of other] universities have entered into settlement agreements with DOJ under existing regulations requiring that their instructional materials be accessible to and usable by individuals with disabilities. And again, there are a number of settlement agreements just entered between DOJ and institutions of higher education.
What factors are generally considered when determining if something is an undue burden for an educational institution?
BOBBY SILVERSTEIN: I have also, when I had nothing else to do, reviewed about 400 settlement agreements issued by the Department of Education Office for Civil Rights with respect to all issues under Section 504 nondiscrimination by recipients and ADA.
But it’s mostly 504 of the Rehabilitation Act cases. And in not a single one did I see undue burden be a defense that was accepted, not a single one.
This is the “however” [part]…
However, in the education context, another defense, [undue burden means] a fundamental alteration in the nature of the program. And there are multiple, multiple court cases and interpretations, including those that find a fundamental alteration.
In a nutshell, the courts provide great deference to academic decisions so long as they are thoughtful, careful, deliberative in nature, and done by the right folks. And that includes experts in education pedagogy, disability policy, and experts in the provision of accommodations.
Are businesses that only operate online covered by the ADA’s requirements applicable to web accessibility?
“ I totally agree with the DOJ in all of the amicus briefs that they have filed that when the statute talked about a place, they included a website. ”
Former Chief Aide to Sen. Tom Harkin
BOBBY SILVERSTEIN: That’s a really tough question in the sense that there is a disagreement around the country on what the answer to that is.
So I will share with you what the issue is. I’ll try to give you how the different courts have addressed it, and then give you my opinion.
Title III of the ADA, public accommodations, covers private entities. And they’re considered public accommodations if their operations affect commerce in areas like sales, rental, service, places of education, places of recreation. They also say no individual shall be discriminated against by any place of public accommodation. That’s the statute.
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The regulation specifies that a place of public accommodation means ‘a facility operated by a private entity.’
So the issue that the courts have wrestled with when a company only provides its goods and services online is the interpretation of a place or the interpretation of the word ‘facility.’
And courts in the First, Second, Fifth, and Seventh Circuits have held or suggested that a place of public accommodation does not have to be a physical structure.
In contrast, courts in the Third, Fourth, Sixth, Ninth, and Eleventh Circuits have held that they either need to have a physical structure or there needs to be, quote, a “nexus” between the online business and the physical structure.
Remember, from my perspective, if we go back to the 1992 statement, we have to construe these regulations as recognizing the developments of technology over time, and use the simple phrase “web site,” you know that the clear, unequivocal intent is to cover businesses who only do business online.
Now, whether or not some courts have construed the reg to include the word facility [makes a difference]. But I totally agree with the DOJ in all of the amicus briefs that they have filed that when the statute talked about a place, they included a website.
Disclaimer: Bobby Silverstein does not speak on behalf of the DOJ. This blog post does not constitute legal advice.
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