There’s “no doubt whatsoever” that the Americans with Disabilities Act covers website accessibility, according to Robert “Bobby” Silverstein. And it was “very, very clear” in the early 1990s that the Justice Department wanted its ADA regulations to be interpreted over time to keep pace with emerging technologies.
In 2016, the gateway to employment is often the Internet, Silverstein said. People use the Internet to learn about potential employers and to apply for jobs, and employers use intranet websites for job-related testing, training and information sharing purposes.
During a July 21 PEAT Talk, Silverstein discussed the role of the ADA in ensuring the accessibility of information and communication technologies in the private-sector workplace.
The Partnership on Employment & Accessible Technology (PEAT) is funded by the Labor Department’s Office of Disability Employment Policy.
Silverstein is a principal in the law firm of Powers Pyles Sutter & Verville PC, and a PEAT Team member. He is the former staff director and chief counsel to the Senate Subcommittee on Disability Policy and chief aide to former Senator Tom Harkin (D-Iowa), who sponsored the ADA.
What is the argument for accessible ICT as it relates to employment? Silverstein said the ADA and its regulations make it unlawful to discriminate on the basis of disability in regard to recruitment, advertising, job application procedures and all other terms, conditions and privileges of employment, and prohibit the adoption of criteria or methods of administration that have the effect of denying “effective and meaningful” opportunity.
New technologies aren’t foreseeable, but “I can tell you that that standard will apply today, tomorrow, ten years from now,” he said.
What this means is that employers are obligated to make their web-based information and data accessible to applicants and employees with disabilities—that information and data must be made available in an effective and meaningful way.
Recap of DOJ Settlements
Based on his review of 167 DOJ settlements with public- and private-sector employers, state and local governments and private entities, the department has addressed a number of issues, including the accessibility of websites generally, employment websites and mobile applications.
A typical settlement agreement with an employer requires employment opportunity websites and job applications to conform to Web Content Accessibility Guidelines published by W3C (WCAG 2.0 Level AA). This means information and data provided on the website must be accessible to individuals with disabilities in accordance with specific international standards.
What’s interesting about some settlements is that they go beyond the requirements and the standards; they also say that employers must adopt an accessibility policy, distribute that policy to company employees and vendors, develop accessibility plans, evaluate, test, ensure feedback from people with disabilities, provide training and guidance, and/or identify an individual or office to serve as a coordinator.
Moreover, the settlements have made “crystal clear” that employers and other ADA-covered entities can’t make arrangements with vendors if those arrangements have a discriminatory effect. The employer has the obligation to make its website accessible—not the vendor who designed the website.
DOJ Seeking Public Input
The Justice Department in July 2010 released an advance notice of proposed rulemaking to clarify the standards that would apply with respect to accessibility of ICT, specifically websites of state and local governments and websites of places of public accommodation.
Earlier this year, the department issued a supplemental advance notice of proposed rulemaking for state and local governments (RIN 1190-AA65). The SANPRM will provide the basis for a proposed rule clarifying requirements under Title II of the ADA.
In the document, the agency requested public comment on 123 specific questions. Those questions include: What is the meaning of web content? What standards for web access should apply? What’s the timeline for compliance? Should special alternative requirements apply to small public entities and special districts? Should there be exceptions for archived web content or for third-party web content referenced on a website?
Today, the DOJ announced the public comment period for the SANPRM is extended until Oct. 7, 2016.
Silverstein said he expects the next administration to issue a proposed rule, and ultimately a final rule, not only for state and local governments under Title II but also for public accommodations under Title III (RIN 1190-AA61).
“At some point and time, I expect you’ll see more clarity from the EEOC with respect to the application of Title I regs to accessible ICT as well,” he said.
The Equal Employment Opportunity Commission enforces the Title I employment provisions of the ADA.
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