Sites that are not designed with these assistive technology features in mind can be impossible for visually impaired users to navigate. For example, in Access Now v. Southwest Airlines, the plaintiffs sued because the airline’s “virtual ticket counters” were inaccessible to visually impaired individuals who use screen-readers to navigate the Internet. 227 F.Supp.2d 1312, 1318 (S.D.Fla. 2002), aff’d, 385 F.3d 1324 (11th Cir. 2004). In a similar case against the retailer Target, the plaintiffs alleged that it was “literally impossible for blind users to even complete a transaction on [Target.com]” due to a lack of alt-text coding and inadequate labeling of online forms. Complaint, National Fed’n of the Blind v. Target, 452 F.Supp.2d 946 (N.D.Cal. 2006).
Most of the case law applying the Americans with Disabilities Amendment (ADA) to electronic media has centered on the issue of whether a website is a “place of public accommodation.” Title III of the ADA prohibits discrimination against individuals with disabilities “in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.” 42 U.S.C. 12182(a). Some courts have concluded that a website is subject to the ADA to the extent that it offers either the same services as a physical place of public accommodation or a service that affects access to a physical place of public accommodation. See, e.g., Target, 452 F.Supp. at 956. Some courts have gone further, suggesting that the ADA applies equally to electronic and physical spaces. See, e.g., Doe v. Mut. of Omaha Ins. Co., 179 F.3d 557, 559 (7th Cir. 1999) (dicta). The Department of Justice has adopted the broader position, commenting in a 1996 letter that a covered entity that chooses to communicate through the Internet “must be prepared to offer those communications through accessible means as well.” Letter of Deval L. Patrick, Assistant Attorney General, Civil Rights Division, U.S. Dept. of Justice, to Sen. Tom Harkin, Sept. 9, 1996.
Although most of the case law applying the ADA to electronic media arises in the public-accommodations context, it is not difficult to see how inaccessible electronic media could form the basis of an ADA claim against an employer. Title I of the ADA, which applies to employment, prohibits discrimination “on the basis of disability in regard to job application procedures.” 42 U.S.C. 12112(a). The Equal Employment Opportunity Commission’s (EEOC) Technical Assistance Manual, first developed when the Internet was in its infancy, notes that “job information in an employment office or on employee bulletin boards should be made available, as needed, to persons with visual or other reading impairments.” EEOC, Technical Assistance Manual §5.2 (1992). Additionally, the Technical Assistance Manual provides that “[r]ecruitment activities that have the effect of screening out potential applicants with disabilities may violate the ADA.” Id. at §5.4. By way of example, the Technical Assistance Manual provides that recruitment activity that is conducted at a place that is physically inaccessible or inaccessible to people with visual, hearing, or other disabilities, may subject an employer to liability. Reasonable accommodations can include “modifications or adjustments to a job application process that enable a qualified individual to be considered for the position such qualified applicant desires.” 29 C.F.R. 1630.2(o)(1)(i).
Rendon v. Valleycrest Products, Ltd., a Title III case, illustrates how an inaccessible employment application process could give rise to a discrimination claim. In Rendon, the Eleventh Circuit held that the telephone selection process for the game show Who Wants to Be a Millionaire was a “discriminatory screening mechanism” that deprived individuals with hearing disabilities and finger mobility conditions of the chance to compete on the show. 294 F.3d 1279, 1286 (11th Cir. 2002). That the alleged discrimination occurred “at a distance” made the discrimination no less real than if it had occurred at the studio door. The same rationale could apply to an electronic employment-application process that screens out visually impaired individuals because it is incompatible with assistive technology.
In another case, a federal appeals-court judge noted the problems that an inaccessible website could pose to a job applicant with visual impairments. In Allied Technology Group v. U.S., the losing bidder challenged the Department of Justice’s decision to award a contract to develop an Internet job-listing site to a bidder despite the bidder’s “minor” deviation from the electronic-access standards required by section 508 of the Rehabilitation Act. In dissent, Judge Bryson recognized that even a purportedly minor noncompliance with the section 508 standards could pose a significant barrier to a disabled individual:
[I]f an otherwise compliant website provides a job application form, but the ‘Submit’ button is an image file lacking a text equivalent, a blind person can fill out the entire form yet be unable to submit it because a screen-reading program cannot pronounce the “Submit” button due to the lack of a meaningful text equivalent. Similarly, without keyboard accessibility, a blind person will be unable to use software or websites that require a mouse.
Allied Tech. Group, Inc. v. United States, No. 2010-5131, 2011 U.S. App. LEXIS 11687, *40–41 (Fed. Cir. June 9, 2011) (Bryson, J., dissenting). An inaccessible employment-application process such as that described by Judge Bryson could have the effect of screening out an individual with disabilities, giving rise to a potential discrimination claim.
Unlawful discrimination may also occur when an employer uses web- or computer-based programs that are inaccessible to employees with visual impairments. Title I also prohibits discrimination in “other terms, conditions and privileges of employment.” 42 U.S.C. 12112(a). This includes fringe benefits, training, and social and recreational programs sponsored by the employer. See 29 C.F.R. 1630.4. Access to certain tools and programs, such as web- or computer-based work platforms, are also likely to be covered by this provision. For example, in New Jersey, employees of various state agencies filed a complaint in May 2011 alleging that the software used for employee timekeeping and attendance tracking was inaccessible to blind employees using screen-access technology. A visually impaired employee in Maryland recently filed suit after her employer switched to a database program that was allegedly incompatible with Braille conversation software.
Although applicable only to the federal government, section 508 of the Rehabilitation Act provides useful guidance for employers looking for a standard by which to measure compliance. Generally, section 508 requires each federal department or agency and the U.S. Postal Service to ensure that individuals with disabilities who are federal employees have access to and use of electronic and information technology that is comparable to that of individuals who do not have disabilities, unless an undue burden would be imposed on the agency. See 36 C.F.R § 1194.1. The regulations provide technical standards by which to determine comparable access for Internet and web-based content. See 36 C.F.R. 1194.22. The standards prescribe specific design criteria for software and websites, requiring keyboard accessibility, text equivalents for non-text elements, and accessibility of forms. The Website Accessibility Initiative, upon whose guidelines many of the section 508 regulations are based, provides additional accessibility suggestions at its website.
The constant evolution of technology presents challenges as well as opportunities under the ADA. Although the scope of an employer’s obligations with respect to the web are not well defined, employers can look to the section 508 standards for guidance in making their online spaces fully accessible to individuals with disabilities. As employers upgrade office technology, it makes sense to do so with the section 508 standards in mind.
Keywords: employment and labor relations law, Access Now v. Southwest Airlines, EEOC, Rendon, Allied Technology Group
Michael P. Goodwin is an associate with Jardine, Logan & O’Brien, PLLP, in St. Paul, Minnesota.