Your retail business has just begun to take off, accelerated by the appearance of your new e-commerce site. Your customers have taken to the ease and convenience of purchasing your products online, and during the holiday season you had record online sales. However, a letter arrives that forces you to ask whether you need to redesign your site.
In the letter, a vision-impaired customer complains that your Website presents difficulties for the screen access software he uses to translate computer text into Braille. "Isn't this a violation of the Americans with Disabilities Act?" he asks.
Well, is it? A recent lawsuit filed by the National Federation of the Blind (NFB) against America Online might soon resolve that question.
The suit argues that AOL is a public accommodation under Title III of the Americans with Disabilities Act of 1990 (ADA). It charges that AOL's proprietary software is not compatible with screen access software programs used by blind persons to translate computer text into synthesized speech or Braille.
Therefore, NFB lawyers argue that AOL violates Title III of the ADA, the ADA's so-called public accommodation provisions.
Physical space vs. cyberspace Some courts have found that a business must be contained in a physical space to be covered by the ADA. Others have taken a broader view, noting that the ADA is civil rights legislation entitled to liberal interpretation by the judiciary. There are compelling reasons to suggest that unless the suit is settled, the court may find in favor of the NFB.
AOL is relatively unique from an ADA perspective, since it is a business that operates solely in cyberspace. But many online retailers already have a well-established bricks-and-mortar business and unquestionably fall under the public accommodation provisions of the ADA.
Thus, while some might say that the leap required to extend the ADA to cyberspace-only businesses is not justified, the legal jump required to find that the ADA requires an online retailer to have an accessible website is not nearly so great.
Legal grounds First, the ADA says that a public accommodation must provide certain auxiliary aids and services to its customers to ensure effective communication with sight- and hearing-impaired individuals.
The Department of Justice (DOJ), the federal agency charged with enforcing the public accommodation provisions of the ADA, already has expressed its opinion that "covered entities that use the Internet for communications regarding their programs, goods or services must be prepared to offer those communications through accessible means as well."
Second, both the legislative history of the ADA and the DOJ's commentary on the regulations it has written to implement Title III expressly recognize that as technology evolves, so must our reading of what the ADA requires.
For example, the Title III regulations cite the various types of auxiliary aids and services that a public accommodation must offer its disabled customers, such as qualified sign language interpreters and Braille materials. However, the DOJ says, "It is not possible to provide an exhaustive list, and such an attempt would omit new devices and services that will become available with emerging technology."
In short, the ADA's omission of specific reference to or guidelines regarding the Internet cannot necessarily be interpreted to mean that only the bricks-and-mortar segment of a business is covered by Title III.
It may seem incongruous that a visual medium like the Internet must be made accessible to visually impaired computer users. But given the foregoing, not to mention the goodwill generated by being fully accessible to customers who are disabled, clicks-and-mortar retailers should consider revising their Websites.
When contemplating the addition of a web component, it's important for retailers to consult with experts who are familiar with the legal and technical issues regarding Website accessibility.
Design elements that Kent Zimmerman of Hubbard Online, a Chicago-based web design agency, recommends be included in an accessible Website are:
* A site map that's accessible as soon as that site appears, allowing blind users to navigate with less confusion.
* A static alternative to any moving or flashing elements.
* Descriptive "Alt tags" (image alternative tags) for all non-text elements of the site.
* Keyboard shortcuts in addition to point-and-click mouse navigation. This aids users with motor skill difficulties as well as blind users.