A Little Clarity on the ADA’s Application to Modern Technology

November 11, 2016 BY PATRICK LOFTUS
Updated: January 24, 2019


To be fair, language used to address modern-day technology in many US web accessibility laws is a little… foggy.

The Americans with Disabilities Act (ADA), the country’s most far-reaching disability law next to the Rehabilitation Act, was written and signed into law over a quarter-century ago (when the internet was barely around) and still has not undergone an information and communication technology (ICT) refresh.

(An update to the ADA came in 2008, but rather than mention or address changes in ICT, it expanded the law’s scope to protect the civil rights of more citizens.)

The Widening Gap of Interpretation

When the ADA was being drafted, all the authors of the law had to do was look around them and see what structures and technologies needed to be modified for those with disabilities.

It was much easier for organizations to identify exactly what needed to be made accessible in order to comply.

Trying to do that 26 years later in the ‘Digital Age’ is a game of interpretation for those organizations — courts and judges, too.

While the ADA still ensures that a great deal of the digital world can be accessed by blind, deaf, and other differently-abled citizens, many websites and videos on the internet are still left inaccessible by the various organizations and institutions that own them.

Consequentially, over the past decade or so, a growing number of prominent organizations and institutions in the US have found themselves at the business end of an expensive lawsuit for failing to make their technology accessible to people with disabilities.

Blaming and shaming these organizations, however, is not the answer to this problem. The ultimate solution lies in spreading awareness about:

  • The needs of people with disabilities
  • The degree to which emerging technologies need to be made accessible
  • The ultimate intent of the ADA and other disability laws

So what is the Intent of the ADA?

Federal regulators are trying to ensure the ADA keeps up with the times, even though the process has been slow-going.

But for those waiting on changes to the laws, especially in higher education, taking the proactive approach to ICT accessibility is the best course to take in the interim.

The observable trend is that courts tend to favor the positions of disabled citizens in web accessibility cases while lawmakers are leaning towards greater, more detailed regulation of differently-abled access to the internet.

Listen to what an Architect of the ADA Has to Say

We recently had Bobby Silverstein, former chief aide to the senator who authored and sponsored the ADA in the early 1990s, present in a webinar on the ADA’s application to modern technology.

He was there for the drafting of the law, and has been called a “behind the scenes architect” of the ADA. He knows better than most people exactly how the ADA applies to today’s tech:

In 1992, [the] Department of Justice made clear in its original regulations that the regulations should be interpreted, quote, “to keep pace with developing technologies.”

So there was a recognition that technologies would change and advance over time, and the regulations should be construed broadly to recognize the modernization of technology.

Web Accessibility is a Civil Rights Issue

If you pay attention to the Department of Justice (DOJ), the body of government in charge of enforcing the ADA, it is clear which way the laws and the courts are leaning.

The DOJ has stated they openly support the National Association of the Deaf’s position in their legal battle with Harvard and MIT over their lack of accurate closed captions in massive open online courses (MOOCs), a landmark lawsuit that could irrefutably make the case that videos in higher education need to be properly captioned for the deaf and hard of hearing.

It is the responsibility of organizations to think seriously about how accessible their technology is for people with disabilities.

For quite some time, the push for an accessible Internet has been building momentum among people with disabilities, disability advocates, and allies of their cause.

Because in a world where everyday life is increasingly becoming digital the stakes are so much higher — and accessibility needs to be a priority in the design process.

As Bobby tells us, the DOJ is making it clear that they feel the same way:

I’m quoting the Department of Justice and recent testimony before Congress. “As more and more of our social infrastructure is made available on the internet, in some cases exclusively online, access to information and communication technologies is increasingly becoming the gateway civil rights issue for individuals with disabilities.”

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