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Can the Blind Read Your Website?

Here's the question: does the ADA provisions on the accessibility of public accommodations apply to Internet websites just as they do to brick-and-mortar facilities like movie theaters and department stores? Consider this: the ADA was written and passed in 1990. Do you remember how much you weren't using the Internet in 1990? My firm was still using its first generation website, basically a one page advertisement with a little more information than a phone book yellow pages ad. Twelve-plus years is a long time in cyberspace. Did Congress, in 1989 and 1990, mean for the ADA to apply to Internet websites?

Well, moving ahead to present day, Robert Gumson, in Albany, New York, wanted to use Southwest Airline's website. He is blind so he uses a screen-reading software which converts website content into speech. Southwest's site is incompatible with his screen reading program, meaning he couldn't use it.

Somewhere along the way Gumson and a non-profit organization called "Access Now" got together and in June of 2002 Access Now filed a federal lawsuit against Southwest in Miami, Florida. The next month it filed a nearly identical lawsuit against American Airlines, again in Miami. In fact, since Access Now was founded four years ago, it has filed over 440 lawsuits alleging ADA violations. Now, it is targeting Internet websites. Apparently, they are the American Civil Liberties Union of disabilities. Prior to the Southwest lawsuit, they sued Barnes & Noble and retailer Claire's Stores. Both of those cases settled before trial. In 1999 the National Federation for the Blind sued America Online in Boston for this same thing, with a settlement in 2000 whereby AOL agreed to make all of its sites compatible with screen reading software.

And the Southwest case has now been disposed of before trial. Not by settlement, but by a flat out win by Southwest. It filed a motion to dismiss the case, arguing that the ADA does not apply to websites as a matter of law. Judge Patricia Seitz agreed. In her opinion, she stated:

To fall within the scope of the ADA as presently drafted, a public accommodation must be a physical, concrete structure...To expand the ADA to cover 'virtual' spaces would be to create new rights without well-defined standards......It is the role of Congress, and not this court, to specifically expand the ADA's definition of 'public accommodation' beyond physical, concrete places of public accommodation, to include 'virtual' places of public accommodation.

But Judge Seitz didn't let Southwest completely off the hook, also remarking in her opinion that

It is especially surprising that Southwest, a company which prides itself on its customer relations, has not voluntarily seized the opportunity to employ all available technologies to expand accessibility to its Web site for visually impaired customers who would be an added source of revenue.

She noted that approximately 1.5 million visually impaired Americans use the Internet, and that Southwest derives about 46% of its revenue from online bookings on its website.

Judicial restraint by a judge appointed in 1998 by former President Clinton? Absolutely. Putting the buck back in Congress for further consideration? Poor Senators Daschle and Leahy must be turning red with frustration. But this battle isn't over. Access Now will see to that. They are appealing this ruling to the 11th Circuit Court of Appeals.

Requiring all business websites to comply with the ADA will force many small businesses to discontinue websites due to increased costs, or to continue non-compliant, non-legal websites. At least it looks like this debate will happen where it should, in the legislative branch, by elected officials, which are subject to the will of the electorate.

Any business that sells its services or products would be well advised to at least inquire as to how it could make its website compatible with screen reader software, and determine the lowest cost provider of that service.