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I’m a totally blind attorney writing this on a standard Windows laptop. I use Braille and accessible technology to coordinate a nationwide legal program in all 50 states, D.C., and Puerto Rico. I’m conversant in five languages, have lost count of the number of countries I’ve visited, and independently manage a household. And earlier today, I still needed sighted help to fill out a government form.
Johns Hopkins University has found that 47.4 percent of people in the United States believe that going blind is the worst possible health outcome a person can face. Johns Hopkins, Research America, and the National Institutes of Health consistently find that about 90 percent admit some level of fear when we even so much as imagine life as a blind person. And yet, when questioned, people don’t seem to fear a literal lack of eyesight. They fear the inconvenience created by a lack of access. The good news? It’s 2024. There’s an app for that. The bad news? That app may or may not be accessible, and if it isn’t, there’s very little you can do about it.
According to the Centers for Disease Control and Prevention, as many as 27 percent of adults in the United States now have a disability. Examining blindness alone, Cornell University’s Employment and Disability Institute found in their 2016 American Community survey that an estimated 7,675,600 adults and 706,400 children in the United States identify as having a significant visual disability. Further, while blind children and adults are disproportionately reliant on technology for basic access needs when compared to either our disabled or non-disabled peers, we are also one of the populations most likely to encounter substantive access barriers when attempting to use that technology.
Few people could have predicted just how ubiquitous the internet would become when the Americans with Disabilities Act (ADA) was ratified more than three decades ago. Statista estimates that more than 311 million people in the United States use the internet, with 85 percent of us using it at least once a day. This suggests that upward of 76 million disabled people in the United States are using the internet on a daily basis. Compare that to Web Aim’s 2023 test of the million most trafficked websites for material accessibility barriers—those accessibility barriers are expected to negatively impact a disabled person’s ability to gain key information or content from a webpage. The average number of material accessibility errors per page was a staggering 50. What’s more, this analysis only examined those barriers found on homepages. The analysis couldn’t account for errors located on information-laden pages elsewhere in the site, such as those for e-commerce, video streaming, public databases, or, as you might recall, government forms.
The Americans with Disabilities Act of 1990 is the federal law that most generally pertains to daily life for people with disabilities. Title I requires most employers to make the workplace accessible to disabled employees; Title II requires state and local governments to make their programs and services accessible to the disabled public; and Title III requires places of public accommodation, such as stores and businesses, to ensure customers with disabilities can access the same goods and services as everyone else. Yet, even after more than 30 years, endless litigation, and multiple amendments, nowhere in the entirety of the ADA will you find the term “internet.”
Unfortunately, the ADA’s silence on the issue of our right to web accessibility has created a circuit split. The Third, Sixth, Ninth, and Eleventh Circuits take a narrow view of the phrase “place of public accommodation” as found in Title III. “Place,” they reason, must mean a physical place—a brick-and-mortar location. So then what do we do with virtual businesses such as entirely online retailers? Are they exempt from Title III solely because they don’t maintain a physical storefront? Are virtual banks, cell phone companies, telehealth providers, streaming services, or manufacturers of virtual office products which lack physical storefronts given blanket coverage for that company to openly discriminate against a protected class?
Still, the nexus test is just one of many hurdles standing between disabled people and equitable access. Every jurisdiction recognizes two primary affirmative defenses to reasonable accommodations under the ADA: undue burden and fundamental alteration. The ADA Action Network defines undue burden as an action “requiring significant difficulty or expense” given the “nature and cost of the accommodation in relation to the size, resources, nature, and structure of the employer’s operation.” A fundamental alteration, on the other hand, is defined by the Department of Justice Office of Civil Rights as a change that is “so significant that it alters the essential nature of the goods, services, facilities, privileges, advantages, or accommodations offered.” Some covered entities seek to expand these affirmative defenses such that they become blanket exemptions from the law altogether.
In July 2023, the Department of Justice issued its long-awaited Notice of Proposed Rulemaking (NPRM) ostensibly intended to clarify Title II of the ADA pertaining to websites, mobile applications, and social media accounts run by state and local governments. The NPRM opens with an acknowledgment of the existing affirmative defenses before going on to propose seven additional exemptions that would allow a government actor to preemptively decide not to make their content accessible to disabled users.
The seven proposed exemptions are archival web content (excluding individual requests), preexisting conventional electronic documents, web content posted by third parties to a public entity’s website, third-party web content linked from a public entity’s website, course content on a public entity’s password-protected or otherwise secured website for admitted students enrolled in a specific course offered by a public postsecondary institution (excluding individual requests), class or course content on a public entity’s password-protected or otherwise secured website for students enrolled or parents of students enrolled in a specific class or course at a public elementary or secondary school (excluding individual requests), and conventional electronic documents that are about a specific individual, their property, or their account and that are password-protected or otherwise secured. It is noteworthy that when the final rule was announced in 2024, five of the seven exceptions remained.
Breadth aside, note that while some of the NPRM’s most egregious exceptions correctly point out that public entities are already required by law to make certain content accessible upon request, unfortunately, this simply isn’t what’s happening in practice. Even if it were, requiring people with disabilities to notify the covered entity, remind the entity over time, wait for an accessible draft, test the draft once it’s delivered, and repeat as needed puts the onus squarely onto the shoulders of the person experiencing the harm. The NPRM for Title III-covered entities is expected in the coming years.
That being said, we celebrate those entities that do the right thing while we continue to push for change. The Internal Revenue Service worked closely with the National Federation of the Blind to ensure the new E-File service was accessible to blind screen-reader users before it could be released to the public. The National Federation of the Blind also regularly meets with third parties such as exam proctors and textbook publishers to ensure increased compliance over time. Recently, when a major testing body initially refused to provide reasonable accommodations to blind candidates, the proctoring organization joined with us to successfully advocate for prompt and thorough change.
There are also several bills currently pending that would drastically improve the digital landscape for disabled people. H.R. 5813 and S. 2984, known collectively as the Websites and Software Applications Accessibility Act, would explicitly codify our right to digital accessibility into federal law. It would also clearly define what it means to make a website accessible, establish a technical assistance center to provide much-needed assistance to covered entities, commercial providers, and individuals with disabilities, and explicitly direct the Department of Justice and Equal Employment Opportunity Commission to promulgate accessibility regulations. H.R. 1328 and S. 3621, the Medical Device Non-Visual Accessibility Act, would require the Food and Drug Administration (FDA) to promulgate nonvisual accessibility regulations for Class II and Class III medical devices with digital interfaces, require manufacturers of such medical devices to make their products nonvisually accessible, and authorize the FDA to enforce those requirements.
These are only two of the many bills blind people advocated for at the 2024 Washington Seminar—an annual advocacy event started in 1973 in which more than 500 blind people speak directly with members of Congress about issues affecting our everyday lives. And right on the heels of the Washington Seminar comes the Jacobus tenBroek Disability Law Symposium. This year’s theme was appropriately titled “The Right of People with Disabilities to Live in the World: Emergent Barriers and Unrealized Potential.” Topics included the negative impacts of artificial intelligence in the municipal law and disability employment spaces, the Federal Communication Commission’s ongoing accessibility work, using technology to remediate inaccessible crosswalks, the impact of Olmstead on communication access, accommodations for disabled inmates, accessible transportation options, and more.
The National Federation of the Blind remains steadfast in our commitment to achieving equity, opportunity, and prosperity for the blind. A disabled person’s right to live in the world is fundamental to our work within the Federation because we know that accessibility, not disability, is the problem. With love, hope, and determination, we turn dreams into reality. Blindness need not hold you back.
