On July 26, the nation will celebrate the 25th anniversary of the enactment of the Americans with Disabilities Act (ADA). Often referred to as the "20th Century Emancipation Proclamation for People with Disabilities,” this landmark legislation prohibits discrimination on the basis of disability in the areas of employment (Title I), state and local governments (Title II), public accommodations (Title III), and telecommunications (Title IV).
Anniversaries not only provide opportunities to celebrate, they also provide opportunities for reflection. Since 1990, the ADA has removed barriers and opened opportunities for people with disabilities to live proud, productive, and prosperous lives in the mainstream of society. And as technology has become an essential element of everyday living, the ADA is now increasingly playing a critical role in ensuring equal employment opportunity by ensuring the accessibility of information and communication technologies (ICT).
The role of ICT impacts commerce through the purchase of goods and services and how we exchange information–particularly web-based information and applications. ICT also has become a major gateway to employment, primarily because recruiting and hiring systems are often web-based. In many cases, the only way to search and apply for a job is online. Furthermore, employers frequently use intranet websites to conduct job-related testing, provide training to their employees, and share information about fringe benefits and employer-sponsored events and activities.
In light of the critical role ICT plays in contemporary society and is likely to play in the future, it is essential that employers design, purchase, lease, maintain, and use products and services that are accessible to and usable by people with the widest possible range of functional capabilities, including individuals with disabilities. We know that federal agencies must ensure accessibility of ICT in accordance with Section 508 of the Rehabilitation Act. But what role should the ADA play in ensuring accessibility of ICT in the private sector?
When the ADA was signed into law, the internet as we know it today–a primary venue for information, commerce, services, activities and employment–did not exist. Although the ADA did not include specific requirements and standards applicable to accessible ICT, it did include general rules designed to guarantee individuals with disabilities equal, effective, and meaningful access to all of the important areas of American civil and economic life. This included application for employment, hiring, retention, and advancement and other terms, conditions, or privileges of employment. And the Department of Justice (DOJ) made clear, in the preamble to the original 1992 ADA regulations, that the regulations should be interpreted to keep pace with developing technologies.
Consistent with this expectation, the federal government is beginning to recognize accessible ICT as a critical civil rights issue for people with disabilities. The Department of Justice (DOJ) recently recognized that:
“As more and more of our social infrastructure is made available on the Internet–in some cases, exclusively online–access to information and electronic technologies is increasingly becoming the gateway civil rights issue for individuals with disabilities.”
“Electronic and information technologies are swiftly becoming a gateway to employment…Employment recruiting and hiring systems are often web based. In many cases, the only way to apply for a job or to sign up for an interview is on the internet. Job applicants research opportunities online, and they use the internet to most efficiently learn about potential employers’ needs and policies.”
Faced with the reality that ICT opens opportunities for people with disabilities, DOJ is increasingly interpreting the ADA as recognizing that technological advances will leave people with disabilities behind if employers do not purchase and use accessible ICT, and if ICT developers and manufacturers do not make their new products accessible. Recent DOJ testimony recognizes that:
“the federal government must make sure that the legal protections for the rights of individuals with disabilities are clear and sufficiently strong to ensure that innovation increases opportunities for everyone. We must avoid the travesty that would occur if the doors that are opening to Americans from advancing technologies were closed for individuals with disabilities because we were not vigilant.”
Recently, DOJ has also entered into numerous settlement agreements under ADA involving accessible websites and online systems in the employment context. For example, on June 5, 2014, the Department of Justice entered into a settlement agreement with Florida State University [DJ No. 205-17-13] under which Florida State agreed to, among other things, ensure that the FSU Police Department website (including its employment opportunities website and its mobile applications), conform to WCAG 2.0 Level AA at minimum. The Justice Department likewise announced on May 5, 2015 that it reached settlement agreements with the City of Parowan, Utah and the Village of Ruidoso, New Mexico. Under these settlement agreements, each public entity agrees to make their online employment opportunities website and job applications conform to the (WCAG) 2.0 standards.