Demand Our Access

The Episode

In this episode, Desiree and I discuss a terrible experience we had with two moving companies while Desiree was moving to Oregon from Texas. We also discuss the rights parents with disabilities have to be accommodated by their children's schools and provide tips in getting accommodations from schools.

Introduction

In this episode, Desiree and I discuss filing complaints under Title III of the ADA (Title III). Specifically, we walk through filing a complaint with the Department of Justice against Chase bank because of the inaccessibility of its online mortgage services.

This is the text of what Desiree and I filed with the Department of Justice against Chase bank. Note, this text is a bit different than what you will hear if you listen to the podcast. Even though this text is a bit different, the points made during the podcast are the same.

Text of Our Complaint Against Chase

My wife and I are both blind. We decided to use Chase for our mortgage. We chose Chase because their personal banking website and mobile app are reasonably accessible. We discovered Chase’s commitment to accessibility does not extend to its online mortgage services.

Their mortgage portal to read and sign documents is almost entirely inaccessible. Neither my wife nor I was able to read any of the documents we needed to sign until we had already signed them.

Eventually, we needed to find a different mortgage company. We couldn’t enter into a years-long mortgage based on documents we could not read until we signed indicating we had read and agreed with the terms.

Prior to choosing another company, we tried several times, over email and phone, to get Chase to grant a reasonable accommodation for their inaccessible online mortgage services. Without my consent, Chase sent volumes of braille documents to my house. I did not want braille as an accommodation, because I didn’t want to read all of that in braille. Additionally, had I read all of the documents in braille I still would have been unable to sign them independently. Another issue with braille as an accommodation was the reality that Chase would not be able to regularly provide braille in a timely enough manner to enable us to place offers on homes. We needed an accommodation that would address the inaccessibility of the documents, our inability to easily sign the documents, and the timely nature of the mortgage process.

Chase did not have a process in place that would enable me to speak with someone who understands the ADA and reasonable accommodations. The first accommodation they offered was to have me pay an attorney to read the documents to us.

Due to our having to leave Chase, we suffered the following harms: our credit scores went down because the replacement mortgage company ran hard checks on our credit; we lost the money we would have gotten for using the real estate agent we found through Chase; and we lost days and dealt with lots of aggravation both in trying to address the lack of access provided by Chase and the need to begin the mortgage process from scratch. We may also wound up with a higher rate because of the time we lost when we should have been able to lock in a rate.

I am filing this complaint because Chase, like many businesses, does not understand that all of their online services must be accessible. DOJ could do a lot to making web content covered under Title III accessible by holding a company like Chase accountable for the harm it causes by failing to make all of its online services . But Chase, because they promote their accessibility, is especially bad for not actually being accessible.

We have dozens of emails to prove this complaint.

Disclaimer

The information presented in any of the Demand Our Access podcast episodes, on the Demand Our Access website, or otherwise shared in conjunction with or through association with the Demand Our Access project is expressly not individual legal advice. Applying the law depends on the circumstances and events that comprise every situation. Since legal advice is fact-specific, nothing about the Demand Our Access project can provide an individual, a group of individuals, or any organization legal advice.

Title III Continued

General Requirements Under Title III

Denial of Participation

Under the ADA,, a person with a disability cannot be denied service simply because they have a disability.

Equality in Participation

The ADA mandates an equal opportunity to participate in or benefit from the goods and services offered by a place of public accommodation, but does not guarantee that an individual with a disability must achieve an identical result or level of achievement as persons without disabilities. A person who uses a wheelchair cannot be denied access to an exercise class because they cannot do all of the exercises.

Separate Benefit and Integrated Setting

The major principles behind the ADA's efforts to provide people with disabilities access to mainstream opportunities are as follows:

Individuals with disabilities must be integrated to the maximum extent appropriate.

Separate programs are permitted where necessary to ensure equal opportunity. A separate program must be appropriate to the particular individual.

Individuals with disabilities cannot be excluded from the regular program, or required to accept special services or benefits.

Separate Programs

A public accommodation may offer separate or special programs necessary to provide individuals with disabilities an equal opportunity to benefit from the programs. Such programs must, however, be specifically designed to meet the needs of the individuals with disabilities for whom they are provided.

Example

Typically, an art museum does not allow patrons to touch exhibits. Working with a local affiliate of ACB, the art museum arranges a special tour for blind people where the touching of certain exhibits is allowed.

Right to Participate in the Regular Program

Even if a separate program is offered to people with disabilities, a public accommodation cannot deny people with disabilities the right to participate in the regular program, unless some other limitation on providing access exists.

Example

Even if a local ACB affiliate has arranged a special tour for blind people where the touching of some exhibits will be allowed, an art museum cannot force a blind person to take the separate tour. If the blind person wishes, they must be allowed to take any tour offered by the museum.

Modifications in the Regular Program

When a public accommodation offers a special program but a person with a disability chooses to participate in the regular program, the public accommodation is likely to have to provide modifications to the regular program to enable the person with a disability to participate. The fact that a separate program is offered may be a factor in determining the extent of the obligations under the regular program, but only if the separate program is appropriate to the needs of the particular individual with a disability.

Discrimination Based on Association

A public accommodation may not discriminate against individuals or entities because of their known relationship or association with persons who have disabilities.

Retaliation or Coercion

Individuals who exercise their rights under the ADA, or assist others in exercising their rights, are protected from retaliation. The prohibition against retaliation or coercion applies broadly to any individual or entity that seeks to prevent an individual from exercising his or her rights or to retaliate against him or her for having exercised those rights.

Direct Threat

A public accommodation may exclude an individual with a disability from participation in an activity, if that individual's participation would result in a direct threat to the health or safety of others. The public accommodation must determine that there is a significant risk to others that cannot be eliminated or reduced to an acceptable level by reasonable modifications to the public accommodation's policies, practices, or procedures or by the provision of appropriate auxiliary aids or services. The determination that a person poses a direct threat to the health or safety of others may not be based on generalizations or stereotypes about the effects of a particular disability; it must be based on an individual assessment that considers the particular activity and the actual abilities and disabilities of the individual.

The individual assessment must be based on reasonable judgment that relies on current medical evidence, or on the best available objective evidence, to determine –

The nature, duration, and severity of the risk

The probability that the potential injury will actually occur

Whether reasonable modifications of policies, practices, or procedures will mitigate or eliminate the risk

Specific Requirements

Eligibility Criteria

A public accommodation may not impose eligibility criteria that either screen out or tend to screen out persons with disabilities from fully and equally enjoying any goods, services, privileges, advantages, or accommodations offered to individuals without disabilities, unless it can show that such requirements are necessary for the provision of the goods, services, privileges, advantages, or accommodations.

Example

The owner of a parking garage has a policy preventing vans from parking inside even though the garage has the capacity to hold vans. The owner adopted the policy with no intention of keeping people with disabilities from parking in the garage. But the impact of the policy on those with disabilities who use vans to transport their mobility devices means the garage's policy violates the ADA.

Safety

A public accommodation may impose legitimate safety requirements necessary for safe operation. However, the public accommodation must ensure that its safety requirements are based on real risks, not on speculation, stereotypes, or generalizations about individuals with disabilities.

Example

A wilderness tour company may require people to prove a basic level of swimming ability prior to allowing them to participate in a rafting program.

Unnecessary Inquiries

The ADA prohibits unnecessary inquiries into the existence of a disability.

Surcharges

A public accommodation may not place a surcharge only on people with disabilities to cover the cost of accommodating them.

Reasonable Modifications

A public accommodation must reasonably modify its policies, practices, or procedures to avoid discrimination. If the public accommodation can demonstrate, however, that a modification would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations it provides, it is not required to make the modification.

Example

A retail store has a policy of not taking special orders for out-of- stock merchandise unless the customer appears personally to sign the order. The store would be required to reasonably modify its procedures to allow the taking of special orders by phone from persons with disabilities who cannot visit the store.

Check-out Aisles

If a store has check-out aisles, customers with disabilities must be provided an equivalent level of convenience in access to check- out facilities as customers without disabilities. To accomplish this, the store must either keep an adequate number of accessible aisles open or otherwise modify its policies and practices.

Example

If a store's only accessible aisle is generally reserved for those with 10 items or less, the store must modify its policy to allow a wheelchair user with an order larger than 10 items to use the only accessible check-out aisle.

Specialty Goods

Generally, public accommodations are not required to carry specialty goods for people with disabilities. for example, book stores are not generally required to offer braille books.

a public accommodation may be required to special order accessible goods at the request of a customer with a disability if: –

It makes special orders for unstocked goods in its regular course of business

The accessible or special goods requested can be obtained from one of its regular suppliers

Personal Services and Devices

A public accommodation is not required to provide individuals with disabilities with personal or individually prescribed devices, such as wheelchairs, prescription eyeglasses, or hearing aids, or to provide services of a personal nature, such as assistance in eating, toileting, or dressing.

The phrase "services of a personal nature" is not to be interpreted as referring to minor assistance provided to individuals with disabilities. Getting items from shelves someone with a disability can't reach and removing the cover from someone's straw aren't considered personal services.

Auxiliary Aids and Services

A public accommodation is required to provide auxiliary aids and services that are necessary to ensure equal access to the goods, services, facilities, privileges, or accommodations that it offers, unless an undue burden or a fundamental alteration would result. This obligation extends only to individuals with disabilities who have physical or mental disabilities, such as vision, hearing, or speech disabilities, that substantially limit the ability to communicate.

Examples of Auxiliary Aids and Services

Auxiliary aids and services are simply aids and services that make communication for people with communication disabilities easier. Things like sign language interpreting,...

Disclaimer

The information presented in any of the Demand Our Access podcast episodes, on the Demand Our Access website, or otherwise shared in conjunction with or through association with the Demand Our Access project is expressly not individual legal advice. Applying the law depends on the circumstances and events that comprise every situation. Since legal advice is fact-specific, nothing about the Demand Our Access project can provide an individual, a group of individuals, or any organization legal advice.

Introduction

The Department of Justice (DOJ) has a page where you can read the entire text of the ADA, including the updates made to the law in 2008. Information about Title III can be found in a DOJ publication called Americans with Disabilities Act Title III Regulations. DOJ also published an ADA Title III Technical Assistance Manual that’s a bit outdated but still a good resource.

I have linked to all of the resources referenced here in the post for this episode on the Demand Our Access website.

I couldn’t possibly cover the entirety of Title III in one episode. So, I have chosen to omit subjects like commercial facilities, construction standards, and health insurance because those topics are too technical to cover as part of an overview of Title III. If you need information about those topics, the resources mentioned in this episode have good information.

I'm not discussing service animals under Title III because I discussed it in the episode called Service Animals Under Titles II and III.

Even though I don't like the word "impairment" the reality is it is used in the law and every publication about the law. So, it is not possible to produce a presentation about Title III that doesn't contain lots of uses of the word "impairment" and other words many of us with disabilities don't use.

Unlike in previous episodes, I'm not going to include specific citations to the Code of Federal Regulations. I'm leaving out those citations to try and make the material easier to follow and understand. The trade off will be that I'm not going to provide direct citations you can use to check my work and learn more than I can cover. But all of the citations to relevant sections in the Code of Federal Regulations can be accessed through the resources I have linked to in this episode. If anyone is willing, I would appreciate feedback as to whether you like this kind of information presented with or without citations.

Title III

Coverage

General Provisions

Title III covers:

Places of public accommodation

Commercial facilities

Examination and courses related to applications, licensing, certification, or credentialing for secondary or postsecondary education, professional, or trade, purposes

Title III also covers private entities primarily engaged in transporting people, but those regulations are produced by the Department of Transportation and will not be discussed in this episode.

Public Accommodations

The whole range of Title III requirements apply to entities the Department of Justice calls public accommodations. In order to be considered a public accommodation an entity must be private and it must own, lease, lease to, or operate a place of public accommodation.

Defining a Place of Public Accommodation

A place of public accommodation is a facility whose operations:

Affect commerce

And fall within one of the following 12 categories:

Places of lodging (e.g., inns, hotels, motels) (except for owner-occupied establishments renting fewer than six rooms

Establishments serving food or drink (e.g., restaurants and bars

Places of exhibition or entertainment (e.g., motion picture houses, theaters, concert halls, stadiums

Places of public gathering (e.g., auditoriums, convention centers, lecture halls

Sales or rental establishments (e.g., bakeries, grocery stores, hardware stores, shopping centers

Service establishments (e.g., laundromats, dry-cleaners, banks, barber shops, beauty shops, travel services, shoe repair services, funeral parlors, gas stations, offices of accountants or lawyers, pharmacies, insurance offices, professional offices of health care providers, hospitals

Public transportation terminals, depots, or stations (not including facilities relating to air transportation

Places of public display or collection (e.g., museums, libraries, galleries

Places of recreation (e.g., parks, zoos, amusement parks

Places of education (e.g., nursery schools, elementary, secondary, undergraduate, or postgraduate private schools

Social service center establishments (e.g., day care centers, senior citizen centers, homeless shelters, food banks, adoption agencies

Places of exercise or recreation (e.g., gymnasiums, health spas, bowling alleys, golf courses

In order to be a place of public accommodation, a business does not need to be expressly named in the above list; rather, it needs to fall within one of the 12 categories listed above. So, a sporting goods store is a place of accommodation under the sales and rentals category even though sporting goods stores aren't directly mentioned in the above list of places of public accommodation.

Commercial Landlords and Tenants

Both landlords and tenants are responsible for following Title III. But the law allows landlords and tenants to contractually determine their rights and responsibilities under Title III. That being said, if your rights under Title III are violated, you could, depending on the facts, sue either the landlord or the tenant and let them fight over who will pay.

Religious Institutions

Religious entities are exempt from the provisions of Title III. A religious entity under Title III is defined as "a religious organization or an entity controlled by a religious organization, including a place of worship." The exemption covers all of a religious organizations, activities whether they are religious or secular.

Examples

A religious institution runs a private school for members and nonmembers. Even though private schools are generally covered by Title III, the religious institution's private school does not have to follow Title III.

If a religious organization rents space for someone else to run a private school, the religious institution, as a landlord, has no responsibility under Title III. But the private organization running the private school would be subject to the requirements of Title III.

If a religious institution donates space on its property to be used as a private school, neither the religious institution nor the private group using the donated space to run a private school is covered by Title III.

The examples show that the only way a private organization that is not a religious institution can be subject to Title III is if the private organization rents or leases space from the religious institution.

Private Clubs

Strictly private clubs aren't covered by Title III. Courts typically use the following five factors when determining whether a club is private and thus exempt from the provisions of Title III:

Members exercise a high degree of control over club activities

The member selection process is very selective

Substantial membership fees are charged

The entity operates as a nonprofit

The club was not founded to avoid federal civil rights laws

Facilities of a private club lose their exempt status to the extent they are made available to the public.

Example

A private country club rents to a private organization to run a day care center from its facility. The day care center accepts students whose families are members of the country club and from families who aren't members of the country club. By allowing nonmembers of the country club to use the day care center, the private club has lost its Title III exemption for the portion of its facility used as a day care center.

State and Local Governments Under Title III

State and local governments aren't subject to the provisions of Title III. As we saw in the episode called "Title II Basics" state and local governments are covered by Title II of the ADA. The reason I'm mentioning this in an episode about Title III is that facilities and programs can be subject to the requirements of Titles II and III.

Examples

A state's parks department provides a restaurant in one of its parks. The state parks department contracts with a private corporation to manage the restaurant.

Even though the parks department is not directly managing the restaurant, it is required to ensure that the restaurant complies with all of the relevant provisions of Title II. The corporation managing the restaurant is required to follow the provisions of Title III.

A city owns an office building. It rents the first floor of the building as commercial space to a restaurant, news stand, and an office supply store.

The entire building, because it's owned by a city, is subject to the requirements of Title II. This means that the city, as a landlord, is required to ensure all of the commercial activities taking place on the first floor live up to the city's responsibilities under Title II.

A state and a private corporation enter into a joint venture to build a football stadium. The stadium is subject to the requirements of Titles II and III. To the extent that there is a difference in what is required as the stadium is constructed, the joint venture must use the requirement that would provide the most accessibility, whether the standard is found under Title II or III.

Relationship to Other Laws

The Rehabilitation Act of 1973

Title III is intended to provide people with disabilities at least as much protection as has been provided by Title V of the Rehabilitation Act, including section 504. Section 504 covers programs of the federal government and entities receiving federal money.

Other State and Federal Laws

Title III does not disturb any federal or state law p

Episode Information

This episode is a demonstration of me commenting on the Department of Justice's proposed rule on web accessibility under Title II of the Americans with Disabilities Act. If you're interested in commenting, please visit this page on Regulations.gov. Note, comments must be submitted by midnight EDT on October third.

If you comment, I would love to hear from you. If you're interested, we may even be able to discuss your comments on the live version of the podcast broadcast on ACB Community.

The Comment Submitted During the Episode

Here is the text of the comment I submitted during the demonstration of the process for commenting on the proposed rule for web accessibility under Title II.

The final rule must ensure that state and local governments understand that adding so-called accessibility overlays does not mean sites and/or pages comply with the rule or result in accessible websites.

As a blind person who navigates the web with a screen reader, I hate websites that use so-called accessibility overlays. They don’t work well. They make everything load slower. They don’t behave consistently. They have different levels of capability. Most importantly they give site owners and creators the false idea that their site is accessible.

Overlays do not ensure PDFs, PowerPoints, visual representations, and more ways of providing information on the web are accessible when that information is uploaded to websites as downloadable content or content designed to open in another window or tab.

Overlays also do nothing about third-party portals and other external content that state and local governments require you to use to access their activities, programs, and services. My water company has a so-called accessibility overlay on their site. I can’t pay my bill online without guessing at where information is to be entered because the third-party portal they use is not accessible. I find their payment portal so aggravating that I call to pay my bill and sacrifice the convenience of online payment options available to their customers who do not use screen readers.

When I encounter a site with a so-called accessibility overlay, I know the site’s owners and creators aren’t really interested in providing me as a disabled person the integrated web experience mandated by Title II. Unless the final rule clarifies that so-called accessibility overlays do not provide compliance, I’m afraid many state and local governments will use overlays instead of doing what the law expects and updating their sites so that those of us with disabilities have the same integrated user experience as do people without disabilities. In the process, many more aspects of doing business with local governments may become more inaccessible or fail to result in the accessibility changes hoped for through the promulgation of this rule.

Note on This Recording

Thanks to technical difficulties, this episode was recorded from the live version of the podcast played on ACB Community. So, it could not be edited to the usual standards of the episodes presented here. Still, the information is accurate and useful. !

Section 508

Here are a few things in Section 508 that should be kept in mind..

Section 508 applies to information and communication technology (ICT) procured, maintained, developed, or used by federal agencies covered by Section 508 of the Rehabilitation Act of 1973 and Section 255 of the Telecommunications Act of 1934 as implemented by the Federal Communications Commission (FCC).

When Section 508 is updated, the law mandates the updated or revised standards be incorporated in procurement processes within six months of adoption.

Section 508 applies to covered hardware, software, electronic content, and support documentation.

Under Section 508, all covered web and non-web content and software—including websites, intranets, Word documents, PDFs, and project management software is largely required to conform to WCAG 2.0 levels A and AA.

Section 508 covers all external content and the following nine categories of internal content:

emergency notifications

decisions related to administrative claims or proceedings

an internal or external program or policy announcement

a notice of benefits, program eligibility, employment opportunity, or personnel action

a formal acknowledgement of receipt

survey questionnaires

a template or form

educational or training materials

or intranet content designed as a web page.

Agencies had one year from adoption of the revised standards to comply.

A safe harbor provision means that ICT that complied with the previous version of Section 508 guidelines complies with the existing version of Section 508 unless the ICT is altered. Alterations are considered on an element-by-element basis to determine whether an alteration triggers a need to comply with the revised Section 508 guidelines.

Where ICT conforming to one or more of the Section 508 standards is not commercially available, the agency shall procure the ICT that best meets the revised 508 standards consistent with the agency’s business needs.

The responsible agency official shall document in writing: (a) the non-availability of conforming ICT, including a description of market research performed and which provisions cannot be met, and (b) the basis for determining that the ICT to be procured best meets the requirements in the Revised 508 Standards consistent with the agency’s business needs.

Where ICT that fully conforms to the Revised 508 Standards is not commercially available, the agency shall provide individuals with disabilities access to and use of information and data by an alternative means that meets identified needs.

Non-Web documents do not have to comply with the following four WCAG success criteria. : Bypass Blocks; Multiple Ways; Consistent Navigation; and Consistent Identification.

Exceptions Under Section 508

Section E202 of Section 508 lists the five general exceptions to section 508:

Legacy ICT

National security systems

Federal contracts

ICT functions located in maintenance or monitoring spaces

The Section 508 website has information about the five general exceptions plus the best meets exception and the undue burden or fundamental alteration defenses to compliance.

Proposed Rule

Introduction to the Rule

On July 25, 2023, the Department of Justice (DOJ) released a proposed rule that if adopted would clarify what state and local governments must do to have their web content be considered compliant with Title II of the Americans with Disabilities Act (Title II). You can read the entire proposed rule and comment on it at Regulations.gov. Comments must be received by midnight EDT on October third. If you're only interested in the highlights, you can read a fact sheet about the proposed rule published by DOJ.

compliance Standard and covered Content

Would make version 2.1 Level AA of the Web Content Accessibility guidelines (WCAG) the compliance standard under Title II

Would apply to web content that a state or local government makes available to the public or to offer activities, programs, and services to the public

Applies to mobile apps made available to the public or used to offer activities, programs, and services to the public

Exceptions

The proposed rule contains six exceptions. In most instances, content meeting one of the exceptions would not need to be automatically made accessible.

Archived Web Content

Web content meeting all three of the following factors would not need to comply with WCAG:

The content is maintained only for research, reference, or record keeping.

The content is kept in a special area for archived content.

The content has not been changed since being archived.

Preexisting Conventional Electronic Documents

Web or mobile content meeting both of the following requirements would not need to automatically comply with WCAG.

The documents are in certain file formats specified in the proposed rule, like word processing, presentation, PDF, or spreadsheet files.

are available on the state or local government’s website or mobile app before the date the state or local government will have to comply with the rule (after the rule is finalized).

This exception would not apply if the preexisting document is currently being used by the state or local government to provide information or to enable participation in an activity, program, or service of the state or local government; for example, an online PDF form created in 2021 enabling people to request tax statements would need to comply with WCAG even though it would have been created prior to the rule taking affect.

Content Posted by a Third Party

Web content posted on a state or local government's website by a member of the public or that is otherwise out of the control of the state or local government would not need to comply with WCAG. States and local governments would not need to ensure all messages posted to their website by the public comply with WCAG. But if someone with a disability requests access to content that did not comply with WCAG, the state or local government would generally have to provide access to that information.

Linked Third Party Content

If a state or local government links to third party content on an external website, the state or local government would not need to ensure the content on the external site complies with WCAG. If a town links to local businesses, it would not need to ensure the web content of the local businesses complies with WCAG.

But if the town links to an external website to provide information or to allow people to access activities, programs, or services offered by the town, the town must ensure that the third party web content complies with WCAG. If a town contracts with a vendor to allow for the processing of credit card payments, the town would need to ensure the third party credit card processor complies with WCAG.

Public School's Password Protected Content

Password-protected content associated with specific classes or courses generally would not need to comply with WCAG. The exception would not apply under either of the following two circumstances:

A student needing accessible content is enrolled in a class

A student is enrolled in a class and their parent has a disability resulting in the parent needing accessible materials

Individualized Documents That are Password Protected

Web content meeting all three of the following factors would not need to comply with WCAG:

The content is in certain file formats, like word processing, presentation, PDF, or spreadsheet files

Files are about a specific person, property, or account

Files are password protected

If a city provides PDF versions of individual water bills through its website, all of the individual water bills would not need to comply with WCAG. If someone with a disability requests their individual water bill be provided accessibly their individual water bill would need to comply with WCAG.

Proposed Times for Compliance

If the rule is adopted with its current dates for compliance, state and local governments will have different amounts of time to comply depending on their population.

Local governments with a population of less than 50,000 would have three years from the rule's adoption to comply with the rule.

Special district governments would also have three years to comply.

A state or local government with a population of at least 50,000 would have two years to comply with the final rule.

City school districts would use the population of their city when determining their compliance date.

County school districts would use the population of the county to determine their compliance date.

Independent school districts would use the population estimate in the most recent Small Area Income and Poverty Estimates.

Miscellaneous Notes

In this section, I'm going to cover a few important items that didn't fit well in the other main sections but that I wanted to share.

Public Colleges and Universities

If a student enrolled in a class prior to the class beginning, course materials would need to be accessible as soon as the class began.

If a student registers for a class after the class begins, the school would have five business days to make all of the course material accessible.

Any course materials added during the class would need to be accessible as it is added.

Social Media Posts

Through the rule making process, DOJ is looking for feedback on how this rule could address social media posts created by state and local governments. The initial idea is to have all social media posts produced after each state or local government is required to comply with the rule follow WCAG to the extent that social media platforms allow for conformance with WCAG. But DOJ is looking at how to address social media posts, including content posted to YouTube that will have been created prior to compliance being required.

Alternative Websites

The proposed rule only allows alternative websites to be used to provide accessible web content when a state or local government can show that making the existing web content accessible would be impossible or if one of the existing defenses available under Title II would apply.

ADA Defenses

I'm not going to spend much time here, because we have covered the defenses available under Title II in the episode on Title II basics. But to provide a quick reminder, state and local governments would need to comply with this rule unless they could demonstrate that doing so would result in fundamental alteration of their activities, programs, or services, or if compliance would result in undue administrative burdens.

Effective Communication

In the episode about effective communication, I covered all of the requirements state and local governments have around effectively communicating with people with disabilities. This rule would not limit any of those requirements. That's why a state or local government would need to make archived content, which is otherwise not required to be accessible under this rule, compliant with WCAG if requested by a disabled person.

My Thoughts on the Proposed Rule

On balance, this proposed rule is well done. If it was law today, there is a reasonable chance that the web content offered by state and local governments would be far more accessible than it is today. But I have already begun commenting on the rule because I hope it will be improved by the time it is finalized. Comments I have or will share with DOJ include the following topics:

The rule should address and account for the inequity behind the development of WCAG by requiring manual testing to be done by native users of assistive technologies.

The rule should not expressly adopt version 2.1 of WCAG. Version 2.1 is likely to be outdated prior to this rule being finalized.

The rule should expressly address audio description. Even though audio description is called for in all prerecorded content under WCAG, it is almost never provided by state and local governments.

Given the amount of information state and local governments are now communicating through maps, data visualizations, and other methods of web content that provide little to no accessibility and that aren't really covered in WCAG, the rule needs to specifically address these methods of communicating information on the web.

Introduction

Before giving a brief history of WCAG and describing its technical components at a very high, hopefully easy to follow level, I'm going to discuss what I believe is the most important thing people need to know about the Web Content Accessibility Guidelines--the reality that their development is inequitable and largely excludes people with disabilities. I'm beginning with the lack of equity involved in the WCAG development process, because I'm hoping folks will consider what our lack of involvement in the technical aspects really mean for our odds of using WCAG to create a web that's truly accessible to us.

WCAG's Lack of Equity

I covered this at the end of a previous live version of the podcast, but it needs to be restated here. The process of developing the WCAG is not at all equitable or inclusive of members of the disability community. The WCAG is developed by the Web Accessibility Initiative (WAI). Specifically, the development of WCAG is done by the Accessibility Guidelines Working Group. The current chairs of the Accessibility Guidelines Working Group are Charles Adams (Oracle), Rachael Bradley Montgomery (Library of Congress), and Alastair Campbell (Nomensa a British company). As far as I can tell, and I have looked reasonably hard, none of the three is a user of assistive technologies. All of them describe themself as working on accessibility, in the field of accessibility, and/or advocating for accessibility for periods of years. I can't find one mention of any of them discussing their life as a person with a disability, describing how they use assistive technologies, or commenting about how they are personally impacted by inaccessibility.

I mentioned the employers of the chairs of the Accessibility Guidelines Working Group because the Working Group is an organization that for all intents and purposes only allows other organizations to join as full members. This means that an individual (regardless of their disability status, knowledge of assistive technologies, web codes, and related tools) cannot join without an invitation unless their employer pays to be an organizational member or they are able to pay thousands of dollars to join as an individual. The Membership FAQ has lots of information about joining the Accessibility Guidelines Working Group.

The fees for joining the Accessibility Guidelines Working Group highlight the elitist, restrictive, inequitable nature of the WCAG development process. The current cheapest fee for joining, in the United States available to very small nonprofits and government agencies, is $7,900 Annually. The largest annual fee for a United States business is currently more than $77,000 annually.

As the FAQ about the membership process and the fee structure for joining the Accessibility Guidelines Working Group indicate, the development of WCAG and the leadership of that development is a process that the vast majority of the disabled community cannot participate in at all. to make matters worse, the only people with a real shot at membership and the right to true participation are people who gain entrance in the organization with the permission of their employer. This structure creates an obvious conflict of interest forcing people to, at minimum, represent the wishes of their employer if they want to continue participating. So, the structure effectively guarantees very few people with disabilities will have an actual say in decision making and that the guidelines reflect the wishes of the business community--not the disability community.

To pretend it welcomes participation and to offer a largely false nod to equity and inclusion, the Accessibility Guidelines Working Group does offer different ways for members of the public to comment. But as you have heard me say repeatedly on this podcast, the most important concept of disability equity is nothing about us without us. By using a process that effectively prevents people with disabilities, unless they are representing their employer's interest, from having a voting say in the development of WCAG, the Web Accessibility Initiative (WAI) has created a process that is all about those of us with disabilities while largely preventing those of us with disabilities from meaningful participation and denying us a real chance to lead efforts reporting to make web content more accessible to us.

Basics of the Web Content Accessibility Guidelines

The Web Content Accessibility Guidelines (WCAG) are developed by the Web Accessibility Initiative (WAI), a division of the World Wide Web Consortium (W3C). W3C is a web standards organization founded in 1994 which develops interoperable technologies (specifications, guidelines, software, and tools) to lead the Web to its full potential. The W3c is directed by Sir Tim Berners-Lee, who invented the World Wide Web in 1989.

Version 1.0 of WCAG was officially released on May 5 1999. Version 2.0 of WCAG was released on December 11, 2008. Version 2.1 of WCAG was released on June 5, 2018. Version 2.1 of WCAG is the current official version of the standard. Version 2.2 was recommended as an official standard on January 25, 2023. It has not yet been officially adopted. That is supposed to happen at some point this year. The latest working draft of version 3.0 was released on December 7,2021.

Since version 2.1 is the official version and version 2.2 will be the official version later this year, the rest of this episode will focus on those versions. Version 3.0, at this point, seems at least a couple of years off. So, I will cover it in a future episode.

WCAG Two

The Web Accessibility Initiative has an overview of WCAG two covering versions 2.0, 2.1, and 2.2.

Before diving in to specifics of WCAG two it's important to define what the WAI means when it says web content. Web “content generally refers to the information in a web page or web application, including:

Natural information such as text, images, and sounds

Code or markup that defines structure, presentation, etc

Important things to know about all versions of WCAG two are as follows:

The standards don't change after they are officially published.

WCAG 2.0 and WCAG 2.1 are backward compatible, meaning if content complies with 2.1 it complies with 2.0.

WCAG 2.1 does not supersede WCAG 2.0. Meaning organizations that have adopted version 2.0 as their standard do not need to adopt 2.1 to be compliant with WCAG.

Four Principles of WCAG

WCAG is based on four principles: perceivable; operable; understandable; and robust.

Perceivable - Information and user interface components must be presentable to users in ways they can perceive.

This means that users must be able to perceive the information being presented (it can't be invisible to all of their senses)

Operable - User interface components and navigation must be operable.

This means that users must be able to operate the interface (the interface cannot require interaction that a user cannot perform)

Understandable - Information and the operation of user interface must be understandable.

This means that users must be able to understand the information as well as the operation of the user interface (the content or operation cannot be beyond their understanding)

Robust - Content must be robust enough that it can be interpreted reliably by a wide variety of user agents, including assistive technologies. This means that users must be able to access the content as technologies advance (as technologies and user agents evolve, the content should remain accessible) If any of these are not true, users with disabilities will not be able to use the Web.

Guidelines and Success Criteria

Under versions 2.1 and 2.2 there are 13 guidelines. For each of the 13 guidelines there are testable success criteria. The success criteria are divided into three levels: A; AA; and AAA. Every organization that has adopted a policy promising to comply with WCAG that I have seen has adopted level AA. This is because level A results in improved but limited accessibility. Level AAA, in some instances, is not achievable. Level AAA is best used when its success criteria would add accessibility for certain disabilities and/or in certain situations. The success criteria are used to determine whether content complies with WCAG. WCAG 2.0 had 61 success criteria. WCAG 2.1 added 17 success criteria, bringing the total number of success criteria in WCAG 2.1 to 78. WCAG version 2.2 added an additional nine success criteria and eliminated one, bringing the total number of success criteria to 86 in version 2.2.

Under version 2.1 there are 30 success criteria at level A, 20 at level AA, and 28 at level AAA. Under version 2.2 there are 31 success criteria at level A, 23 at level AA, and 32 at level AAA.

To illustrate how the levels work, let's consider this example. Under version 2.2, there are 31 success criteria at Level A and 23 at Level AA. For a site to comply with Level AA, as every policy I have seen reports to require, that site must conform with the 54 success criteria combined in Levels a and AA to be considered to meet Level AA compliance under WCAG 2.2. But because there is no requirement to comply with each new version of WCAG two, a site is considered to comply with WCAG as long as it satisfies the requirements of WCAG 2.0 Level AA. Meaning, an organization could have adopted a compliance policy based on WCAG 2.0 in 2008 and would not be required to comply with the requirements added over the last 15 years unless that organization expressly adopted version 2.2 as their new compliance standard. This is what they mean when they say the latest version of WCAG two does not supersede previous versions of WCAG two. My belief, which I hope is true, is that if people with disabilities were allowed meaningful participation in the development of the WCAG that entities would be required to comply with the latest version in within a reasonable time after release in order for them to be con

Introduction

It is impossible to discuss disability justice without referencing American politics and American history. People have very different views of many aspects of American politics. Most people don’t really know American history. So, it will be impossible to discuss disability justice in a meaningful way and not make some folks feel uncomfortable. I say that to preface the truth that much of what I’m sharing here is my personal opinion. I have strong reasons for having the opinions I have, but I appreciate and recognize that some will disagree with me. Even if you disagree with me, I hope you will listen to me, not simply hear what I’m saying. To help you, even if we disagree, understand why I have the views I have, I’m going to share a bit about myself throughout this episode.

Important Facts About Me

I want to share a few things about me so I can refer to them later:

As I hope most of you know, I was born blind.

I’m a white male.

I’m 49 years old.

I grew up in a middle class home.

I graduated from college and law school.

I’m a lawyer by trade.

I’m a homeowner.

I earn a solid middle class salary.

As a person with a disability, I face discrimination and oppression on a daily basis.

As a white male, I am privileged on a daily basis.

As a well-educated member of the middle class, I’m privileged on a daily basis.

As a heterosexual male, I’m privileged on a daily basis.

Disability Justice

The 10 principles of disability justice were created in 2005 by a group called Sins Invalid. Here is a little of how Sins Invalid is described on their website:

Sins Invalid is a disability justice-based performance project that incubates and celebrates artists with disabilities, centralizing artists of color and LGBTQ / gender-variant artists as communities who have been historically marginalized. Led by disabled people of color, Sins Invalid’s performance work explores the themes of sexuality, embodiment and the disabled body, developing provocative work where paradigms of “normal” and “sexy” are challenged, offering instead a vision of beauty and sexuality inclusive of all bodies and communities.

There are now several versions of the 10 principles of disability justice. Since they all present the same ideas and to keep this a bit shorter, I have lightly edited the 10 principles. The light editing I have done also means I have eliminated a lot of explanatory information so I could cover it a bit differently or to save time. The 10 principles of disability justice are as follows:

Intersectionality: We are all many things, and they all impact us.

Leadership of those most impacted: When we talk about ableism, racism, sexism, and more we are led by those who most know these systems.

Anti capitalist politic: In an economy that sees land and humans as components of profit, we are anti capitalist by the nature of having nonconforming bodies and/or minds.

Commitment to cross-movement organizing: Shifting how social justice movements understand disability and contextualize ableism, disability justice lends itself to politics of alliance.

Recognizing wholeness: People have inherent worth outside of commodity relations and capitalist notions of productivity. Each person is full of history and life experience.

Sustainability: We pace ourselves, individually and collectively, to be sustained long term. Our embodied experiences guide us toward ongoing justice and liberation.

Commitment to cross-disability solidarity: We honor the insights and participation of all of our community members, knowing that isolation undermines collective liberation.

Interdependence: We meet each other’s needs as we build toward liberation, knowing that state solutions inevitably extend into further control over lives.

Collective access: As brown, black and queer-bodied disabled people we bring flexibility and creative nuance that go beyond able-bodied/minded normativity, to be in community with each other.

Collective liberation: No body or mind can be left behind—only by moving together can we accomplish the revolution we require.

I want to discuss a few of the 10 principles of disability justice individually. Again, what I will say here are my opinions and are expressions of what the 10 principles of disability justice say to me.

Intersectionality

Intersectionality is a concept invented by Kimberlé Crenshaw in 1989 to describe how race, sex, class, and other characteristics intersect with one another and overlap. For more than 20 years after Professor Crenshaw coined the term intersectionality, it remained an obscure term rarely heard beyond legal and philosophical discussions. Over the last decade, intersectionality has become a cultural and political lightning rod as some folks fight for more equity and others fight to maintain the status quo. But when you think about it, intersectionality makes sense. Everyone is a whole bunch of things. The more things any person has that are different from the traits of those with the most power, the more discrimination and oppression they will face.

Yes, I suffer because of ableism as a person with a disability. But I know that women with disabilities face discrimination based on ableism and sexism. Black women with disabilities face discrimination based on ableism, sexism, and racism. Blind white men with disabilities who live in poverty suffer from ableism and classism.

When I can’t complete an online mortgage application because it’s inaccessible, I’m being discriminated against because I’m disabled. But in the mortgage process I’m advantaged because my legal education means I can understand all of the documents without needing a lawyer or a realtor to explain them to me. Sadly, the fact that I’m white means I’m more likely to get an adequate mortgage than are people of color with the same level of education and salary I have. My lifelong membership in the middle class means I have the ability to get a mortgage when many cannot.

The mortgage process, like everything else in life, leaves me sometimes being oppressed and other times privileges me. I go back and forth between oppressed and privileged because of the intersections that combine to make the whole person that is Jonathan Simeone.

Leadership

The principle of disability justice discussing the idea that people most impacted by discrimination should be leading efforts to reduce and end that discrimination is something I talk about all the time. But I have not yet, on this podcast, referred to the idea of us leading projects impacting us as a principle of disability justice. Still, the notion that we should decide what impacts us and our community is a principle that means a great deal to me and influences much of what I do.

Capitalism

We hear the word “capitalism” every day. But we must use a standard definition of capitalism to better understand disability justice. For our purposes, capitalism is an economic system in which private individuals or businesses own capital goods. At the same time, business owners (capitalists) employ workers (labor) who only receive wages; labor does not own the means of production but uses them on behalf of the owners of capital. In other words, the vast majority of people own little. The bulk of what they acquire depends on their ability to convince someone to hire them. If, for any reason, someone is either unable to produce for the capital class, or the capital class wrongly believes they cannot produce, a person has very little opportunity to achieve. The economic model of disability, as we discussed in the episode on disability equity, reflects true capitalism. Once someone is being paid to produce for the capitalist class that person, no matter how much discrimination they face inside and outside of work, is no longer considered disabled.

Look at Social Security Supplemental Income (SSI). Even though people with disabilities are significantly more likely to be unemployed than people without disabilities, SSI provides far less on a monthly basis than what the federal government considers a poverty level existence because that [person has never produced much if anything for the capital class.

Let’s also consider Social Security Disability Insurance (SSDI). If someone is working and becomes disabled, SSDI pays them only a percentage of their former salary. At a time when someone must face no longer being employed, learn to adjust to having a disability, and try to accept being disabled, their ability to pay their bills is diminished because they are no longer producing for the capital class.

In a just society, people whose disability-based discrimination has been a major contributor to why they have never worked much and why they may never work again, the federal government would not force them to survive on an amount it knows is far less than anyone can actually use to survive. In a just society, people who lose their job because of a disability would not lose a large portion of their salary too. Forcing people to live far below the poverty line or forcing them to lose a large portion of their income because they are disabled is simply immoral and unjust.

Recognizing Wholeness

The idea of recognizing each individual as the whole of who they are is hugely important and rarely happens. I have heard from people of color with disabilities that in disability spaces their race is not seen and that in racial spaces their disability is not seen. People should have all of their identities recognized, appreciated, and spoken to in all spaces. We are not inclusive if someone feels like they can’t discuss a part of who they are in a group.

Cross-Disability Solidarity

One of my biggest frustrations with the disability community is how rarely we act as a community. Instead of working together to make the systemic change we all need, groups representing different parts of our community almost never work together....

Introduction

During our last episode of Demand Our Access, we had a brief discussion of disability equity and disability justice. Since so much of how I see the ADA and the other laws we have and will cover through the Demand Our Access project is influenced by how I view disability equity and disability justice, I decided we should discuss those important concepts in this space. Since Disability equity and disability justice are both heavy topics, I have decided to split them into separate episodes. I’m hoping that by splitting them, there will be time for some thoughtful discussion. So, this episode will focus on disability equity.

Nothing About us Without Us

Nothing about us without us is a critical piece of disability equity. It means nothing that really impacts the disability community should happen without input from people with disabilities. I would add to the concept of nothing about us without us and say that nothing really impacting the disability community should be decided by people without disabilities.

Equality and Equity

Equality means each person and group of individuals is given the same amount of resources and has the same opportunities.

Equity recognizes that each person or group of individuals has unique circumstances and allocates exact resources and opportunities necessary to provide for equal outcomes.

Examples of Equality

A school district spends $20,000 per student.

A government holds a public meeting and provides everyone in attendance the same print agenda and meeting materials.

A bank offers all of its customers the opportunity to use an app to pay bills.

Under each of the three above examples, everyone is supposedly being treated exactly the same. Everyone has been provided the same resources. Everyone has been afforded the same opportunities. In these three examples, the school district, government, and bank are not making any allowances for the unique circumstances of different communities.

Examples of Equity

A school district spends $25,000 per student in schools where more children are living in poverty and $15,000 per student in school districts where families are wealthy.

A government holds a public meeting in an accessible venue and provides the agenda and meeting materials in print, large print, and accessible electronic formats.

A bank allows all customers to pay bills through an app it has developed to be accessible to users of assistive technologies.

In these three examples, the school district, government, and bank took steps to recognize that not all people have the same circumstances. Here, these entities understood that simply providing everyone what on the surface seems like the same resource and opportunity actually disadvantages many people.

The school district recognized that wealthy families could do more for their children than families living in poverty and provided certain schools more money to help reduce the funding disparities that have always existed in schools located in neighborhoods that aren’t wealthy.

The government spent additional money ensuring the venue was accessible to people with mobility disabilities and to provide materials in alternative formats.

The bank spent additional money having its app coded for accessibility and having the app tested by native users of assistive technologies to ensure they have the same usability experience as those who don’t use assistive technologies.

Summing up Equality and Equity

As you have seen, equality ignores the reality that society has always treated people differently. Equity, on the other hand, recognizes the reality of ongoing oppression and requires additional resources and opportunities be provided to historically oppressed communities to provide more equitable outcomes.

The key thing to remember about the equality verses equity debate is that equity focuses on the outcomes produced, not just the resources provided. For our purposes, a societal focus on disability equity instead of equality would force society to admit that people with disabilities are far more likely to live in poverty, be undereducated, and unemployed or underemployed than are people without disabilities. In an equitable society, we would realize that striving for equality of resources and opportunities is simply not working. In an equitable society, we would realize that to make up for the centuries of discrimination and oppression faced by disabled people, government would have to direct far more resources to the disabled community and deliberately provide additional opportunities to the disabled community.

In my view, America would be a far better society had the Fourteenth Amendment been designed to ensure equitable outcomes under the law than equality of opportunity under the law. A focus on equitable outcomes would have forced us to honestly examine and reckon with the lack of similar outcomes so often afforded people of color, people with disabilities, women, and more.

Ableism

Ableism is the intentional or unintentional discrimination or oppression of people with disabilities.

With this definition of ableism, we are acknowledging that discrimination against and oppression of people with disabilities can occur whether it is intentional or not. Again, we are focusing on the outcome of what happened. We are not looking to an individual’s personal intent or the intent of society. We are simply saying that any discrimination against or oppression of a disabled person or a community of disabled people constitutes ableism.

Life experience has taught me that most ableism is originally unintentional. Sadly, most people aren’t aware of the ADA and their responsibilities to the disabled community under the ADA. When I can’t pay my water bill because the water company’s website is inaccessible, I am being discriminated against by the water company because of my disability. The water company didn’t intend to discriminate against me as a disabled person. But the water company unintentionally discriminated against me as a disabled person when it failed to follow the ADA and never imagined how I would pay my water bill. But when I point out the inaccessibility of the water company’s website and the water company does not make its website accessible, the line between intentional and unintentional discrimination gets thinner.

Understanding that someone or an entire society can be ableist whether they mean to be or not is critical to reducing ableism and the discrimination and oppression resulting from ableism. We can no longer allow individuals or entities to claim that our discrimination and/or oppression was accidental. The ADA has been law for almost 33 years. The Rehabilitation Act of 1973 has been law for 50 years. Even Section 508 of the rehabilitation Act of 1973 (mandating accessible electronic content be provided by the federal government) has been law for 25 years. Until we stop allowing people and entities to get away with ableism, whether intentional or not, we will continue living in a society that is overwhelmingly ableist.

Ableist Language

Ableist language is an important concept because words really do matter. The words we use and the ways they are understood have a lot to do with how disabilities and people with disabilities are viewed. The most important thing to remember is to say what you actually mean to say.

In the sentence 'His advice fell on deaf ears’" the meaning is not that the person couldn’t hear the advice being offered. The expression literally means that the person receiving the advice wasn’t smart enough or interested enough to consider the advice. In other words, the expression compares the inability to hear with being less intelligent.

In the sentence ‘You would have to be blind to not see how much money government wastes’ the expression is indicating that blindness prevents blind people from understanding how much money is being wasted by government. I think we can all agree that eyesight is not a requirement to understand government wastes money.

Words like lame, cripple, crazy, and bipolar are often used to describe things that have nothing to do with disability. They are regularly used to be insulting or describe someone’s individual, temporary feeling of inadequacy.

Internalized Ableism

Internalized ableism is the way that an individual absorbs and applies the beliefs and moral judgments of the dominant ableist culture, at a subconscious level. In other words, it's how we absorb and apply the beliefs our society has about our disability and people with our disability and apply them to ourselves and others with our disability.

Sadly, we all know blind people who believe blind people cannot work, raise children, graduate from college, and/or find love. When someone believes that our disability prevents us from doing things we can obviously do, that person has internalized ableism. Instead of knowing discrimination and oppression are the reasons why many of us do not achieve what many people without disabilities achieve, they believe what society says is possible for us as blind people. Even though they are disabled, their internalized ableism results in them believing we are not capable. When confronted by the relative successes of other people with disabilities, they dismiss that success as some people are just better.

Models of Disability

The models of disability are important to our understanding of disability equity, because they provide different perspectives as to how different people view disability and those of us with disabilities. While there are many models of disability, I’m going to cover what I believe are the five most common models of disability.

Medical Model

A person’s disability is their individual problem. People with disabilities need to accept there are things we cannot do because we are disabled people.

Rights Model

...