Megan M. Parsons
Diversity & Inclusion Team Lead
Accessibility research and disability design have the potential to improve quality of life and make the world more inclusive for individuals with disabilities. In the past few years, novel approaches to accessibility research have attempted to establish increasingly objective measures of accessibility. Novel insight and approaches to accessibility are important because disability exclusion comes at a tremendous individual, social, societal, medical, and economic cost. Inaccessibility can pose unique challenges to accessing education or meaningful work, and it can often increase feelings of social isolation. Making strides in the availability and pervasiveness of accessibility options will eliminate barriers for those with disabilities to reach their full potential. In this blog post, we will detail current and historic disability legislation in the United States, and in doing so, we’ll explore why it’s so important to carefully consider the implications of our diversity and inclusion initiatives when trying to effect change.
Policy Guidelines in the United States
The Americans with Disabilities Act (ADA) of 1990 (S. 933) was a landmark piece of civil rights legislation that became law 30 years ago (Harkin, 1990a). In doing so, this legislation established “clear and comprehensive prohibition of discrimination on the basis of disability” and represented the first concerted effort to promote inclusion and provide protections for those individuals (Harkin, 1990b). For the purposes of this legislation, the term ‘disability’ is defined as “a physical or mental impairment that substantially limits one or more of the major life activities” (Harkin, 1990b). The ADA Amendments Act of 2008 (S. 3406) made explicit the definition of “major life activities,” including, but not limited to: seeing, hearing, communicating, walking, standing, eating, sleeping, lifting, thinking, and working (Harkin, 2008). The ADA and subsequent update made enormous strides in preventing the systemic discrimination against those with disabilities.
On October 1st, 2020, Representative Ted Budd (R-NC) and Representative Correa J. Luis (D-CA) introduced the Online Accessibility Act (H.R. 8478) to expand the ADA to include consumer-facing websites and mobile applications owned or operated by private entities to ensure website and application accessibility by those with disabilities (Budd, 2020). This legislation requires substantial compliance with the Web Content Accessibility Guidelines (WCAG) 2.0 Level A and Level AA standard established by the Accessibility Guidelines Working Group (Budd, 2020; Caldwell et al., 2008). Superficially, this legislation seems to promote accessibility and inclusion via updates to the ADA to include digital content; however, a more nuanced reading of the bill reveals that the proposed changes are fraught with issues that fail to achieve the bill’s stated goals.
Delving into the details of H.R. 8478 reveals several disconcerting details, starting with the standard for compliance. The standard established in this bill is WCAG 2.0 or any subsequent update; however, WCAG 2.0 was published in 2018 and the updated version – WCAG 2.1 – contains updates to mobile accessibility requirements, which would undoubtedly be germane to H.R. 8478 (Henry, 2019). A subsequent version, WCAG 2.2, is scheduled to be published in 2021, which further suggests that the compliance standard selected is outdated (Henry, 2019). Ideally, this legislation would reference WCAG 2.1 or later. Furthermore, the bill allows for “[equivalent] alternate means of access for individuals with disabilities” if there is lack of “substantial compliance,” but the bill fails to clarify the requirements for alternate means of access (Budd, 2020). This could potentially allow for undesirable loopholes to be exploited that affect accessibility in undesired ways.
Perhaps in an effort to reduce opportunistic lawsuits, H.R. 8478 requires that all possible administrative remedies be exhausted prior to commencing a civil action in court. This is detailed in Sec. 602 – Administrative Remedies, which requires the notification of the owner/operator of the site or application (who is given 90 days to respond), then escalation to the Department of Justice (DOJ; who is given 180 days to respond) (Budd, 2020). Not only does this bill leave those with disabilities with little recourse outside of up to 9 months of administrivia, but I question whether a bureaucratic approach to resolving these inequities is an optimal solution. Ultimately, H.R. 8478 serves to restrict the right of those with disabilities to file a civil rights lawsuit, which is diametrically opposed to the spirit of this legislation.
This bill introduces bureaucratic hurdles to filing complaints and enforcing compliance standards in a way that neither encourages accessibility standards to be met or allows for standards to be enforced in a reasonable way. In summary, this bill fails to provide adequate additional protections to those with disabilities and should not be supported without substantial revision.
We can see that enacting policy protections for individuals with disabilities has historically been of great benefit to those populations; however, not all introduced legislation is without criticism, and it’s important to carefully consider the implications of the proposed bill on the individuals that it claims to protect.
Conclusion
As engineers and scientists, we have an immense responsibility with every design choice that we make to ensure that we are incorporating feedback from users with disabilities, following the spirit of established policy guidelines (even if the letter of the law is imperfect), and contributing as best as we can to promote access and inclusion in all of our endeavors.
Policy Guidelines in the United States
The Americans with Disabilities Act (ADA) of 1990 (S. 933) was a landmark piece of civil rights legislation that became law 30 years ago (Harkin, 1990a). In doing so, this legislation established “clear and comprehensive prohibition of discrimination on the basis of disability” and represented the first concerted effort to promote inclusion and provide protections for those individuals (Harkin, 1990b). For the purposes of this legislation, the term ‘disability’ is defined as “a physical or mental impairment that substantially limits one or more of the major life activities” (Harkin, 1990b). The ADA Amendments Act of 2008 (S. 3406) made explicit the definition of “major life activities,” including, but not limited to: seeing, hearing, communicating, walking, standing, eating, sleeping, lifting, thinking, and working (Harkin, 2008). The ADA and subsequent update made enormous strides in preventing the systemic discrimination against those with disabilities.
On October 1st, 2020, Representative Ted Budd (R-NC) and Representative Correa J. Luis (D-CA) introduced the Online Accessibility Act (H.R. 8478) to expand the ADA to include consumer-facing websites and mobile applications owned or operated by private entities to ensure website and application accessibility by those with disabilities (Budd, 2020). This legislation requires substantial compliance with the Web Content Accessibility Guidelines (WCAG) 2.0 Level A and Level AA standard established by the Accessibility Guidelines Working Group (Budd, 2020; Caldwell et al., 2008). Superficially, this legislation seems to promote accessibility and inclusion via updates to the ADA to include digital content; however, a more nuanced reading of the bill reveals that the proposed changes are fraught with issues that fail to achieve the bill’s stated goals.
Delving into the details of H.R. 8478 reveals several disconcerting details, starting with the standard for compliance. The standard established in this bill is WCAG 2.0 or any subsequent update; however, WCAG 2.0 was published in 2018 and the updated version – WCAG 2.1 – contains updates to mobile accessibility requirements, which would undoubtedly be germane to H.R. 8478 (Henry, 2019). A subsequent version, WCAG 2.2, is scheduled to be published in 2021, which further suggests that the compliance standard selected is outdated (Henry, 2019). Ideally, this legislation would reference WCAG 2.1 or later. Furthermore, the bill allows for “[equivalent] alternate means of access for individuals with disabilities” if there is lack of “substantial compliance,” but the bill fails to clarify the requirements for alternate means of access (Budd, 2020). This could potentially allow for undesirable loopholes to be exploited that affect accessibility in undesired ways.
Perhaps in an effort to reduce opportunistic lawsuits, H.R. 8478 requires that all possible administrative remedies be exhausted prior to commencing a civil action in court. This is detailed in Sec. 602 – Administrative Remedies, which requires the notification of the owner/operator of the site or application (who is given 90 days to respond), then escalation to the Department of Justice (DOJ; who is given 180 days to respond) (Budd, 2020). Not only does this bill leave those with disabilities with little recourse outside of up to 9 months of administrivia, but I question whether a bureaucratic approach to resolving these inequities is an optimal solution. Ultimately, H.R. 8478 serves to restrict the right of those with disabilities to file a civil rights lawsuit, which is diametrically opposed to the spirit of this legislation.
This bill introduces bureaucratic hurdles to filing complaints and enforcing compliance standards in a way that neither encourages accessibility standards to be met or allows for standards to be enforced in a reasonable way. In summary, this bill fails to provide adequate additional protections to those with disabilities and should not be supported without substantial revision.
We can see that enacting policy protections for individuals with disabilities has historically been of great benefit to those populations; however, not all introduced legislation is without criticism, and it’s important to carefully consider the implications of the proposed bill on the individuals that it claims to protect.
Conclusion
As engineers and scientists, we have an immense responsibility with every design choice that we make to ensure that we are incorporating feedback from users with disabilities, following the spirit of established policy guidelines (even if the letter of the law is imperfect), and contributing as best as we can to promote access and inclusion in all of our endeavors.
References
Budd, T. (2020). H.R.8478 - 116th Congress (2019-2020): Online Accessibility Act. https://www.congress.gov/bill/116th-congress/house-bill/8478
Caldwell, B., Cooper, M., Loretta Guarino Reid, C., & Chisholm, W. (2008). Web Content Accessibility Guidelines (WCAG) 2.0. http://www.w3.org/TR/2008/REC-WCAG20-20081211/
Harkin, T. (1990a). S.933 - 101st Congress (1989-1990): Americans with Disabilities Act of 1990. https://www.congress.gov/bill/101st-congress/senate-bill/933
Harkin, T. (1990b). Text - S.933 - 101st Congress (1989-1990): Americans with Disabilities Act of 1990. https://www.congress.gov/bill/101st-congress/senate-bill/933/text
Harkin, T. (2008). Text - S.3406 - 110th Congress (2007-2008): ADA Amendments Act of 2008. https://www.congress.gov/bill/110th-congress/senate-bill/3406/text
Henry, S.L. (2019). What’s New in WCAG 2.1 | Web Accessibility Initiative (WAI) | W3C. Education and Outreach Working Group (EOWG). https://www.w3.org/WAI/standards-guidelines/wcag/new-in-21/
Budd, T. (2020). H.R.8478 - 116th Congress (2019-2020): Online Accessibility Act. https://www.congress.gov/bill/116th-congress/house-bill/8478
Caldwell, B., Cooper, M., Loretta Guarino Reid, C., & Chisholm, W. (2008). Web Content Accessibility Guidelines (WCAG) 2.0. http://www.w3.org/TR/2008/REC-WCAG20-20081211/
Harkin, T. (1990a). S.933 - 101st Congress (1989-1990): Americans with Disabilities Act of 1990. https://www.congress.gov/bill/101st-congress/senate-bill/933
Harkin, T. (1990b). Text - S.933 - 101st Congress (1989-1990): Americans with Disabilities Act of 1990. https://www.congress.gov/bill/101st-congress/senate-bill/933/text
Harkin, T. (2008). Text - S.3406 - 110th Congress (2007-2008): ADA Amendments Act of 2008. https://www.congress.gov/bill/110th-congress/senate-bill/3406/text
Henry, S.L. (2019). What’s New in WCAG 2.1 | Web Accessibility Initiative (WAI) | W3C. Education and Outreach Working Group (EOWG). https://www.w3.org/WAI/standards-guidelines/wcag/new-in-21/
