The Americans with Disabilities Act (ADA)
The ADA is a comprehensive civil rights law that prohibits discrimination on the basis of disability and ensures equal opportunity for persons with disabilities. The ADA provides legal protections to individuals with disabilities in the areas of employment, state and local government services, public accommodations, commercial facilities, transportation, and telecommunications.
Under the ADA’s employment provisions, “covered employers” cannot discriminate against qualified individuals with disabilities in regard to any term, condition, or privilege of employment—including recruitment, advertising, and job application procedures; hiring, promotion, and termination; and fringe benefits, apprenticeships, training, and sponsored employer activities, including social and recreational programs. (“Covered employers” includes private employers with 15 or more employees, state and local governments, employment agencies and labor organizations.) In addition, covered employers must not participate in a contractual or other arrangement that has the effect of subjecting a qualified applicant or employee with a disability to discrimination on the basis of disability.
Unlawful discrimination includes the failure to provide opportunities to participate in, or benefit from, a privilege of employment that are equal to and as effective and meaningful as those afforded to other individuals, and the failure to provide reasonable accommodations unless doing so would result in undue hardship.
When Congress enacted the ADA in 1991, the Internet as we know it today did not exist. However, as described above, the ADA does create general rules designed to guarantee people with disabilities equal and effective access to all important areas of American life, including employment—and that includes information and communication technology used by employers to carry out the terms, conditions, and privileges of employment.
The U.S. Department of Justice has taken the clear and unequivocal position that the Americans with Disabilities Act (ADA) covers Internet Web site access, mobile applications, and other forms of ICT. Through various actions, including entering into numerous settlement agreements with covered entities, it has long taken the position that employment-related websites, state and local government websites and the websites of “public accommodations” (a term that covers a wide range of entities, including restaurants, hotels, theaters, doctors’ offices, pharmacies, retail stores, museums, libraries, parks, and private schools) that are used by the public are covered by the ADA and should be accessible to and usable by individuals with disabilities. Many of the settlement agreements require conformance with, at a minimum, the Web Content Accessibility Guidelines (“WCAG”), which are the internationally recognized standards developed and maintained by the World Wide Web Consortium’s Web Accessibility Initiative.
For employers, this means that if you have an inaccessible website or plan to use inaccessible information and communication technology that would effectively prevent people with disabilities from applying for or performing a job or taking advantage of the privileges of employment enjoyed by others, then you are at risk of a possible lawsuit.