Analyzing Recent Americans With Disabilities Act-based Accessible Information Technology Court Challenges
Websites, just like buildings, can be designed to meet the needs of all people, including those with disabilities. The evolution of disability rights laws has resulted in the understanding that access to information and communication is a civil right for people with disabilities. For example, in the digital age, employees may expect an accessible intranet/Internet environment as a reasonable accommodation; students may expect access to distance learning courses; citizens may expect access to Internet kiosks for voting or participating in business or governmental transactions; and consumers may expect access to electronic textbooks and the Web-based environment. Unfortunately, however, web pages frequently contain major access barriers to effective communication and participation in the cybersociety of the new millennium. Consequently, the digital divide will continue to persist if this issue is not addressed through technological innovations, research, education, outreach, and laws.
In the United States, several legal cases have attempted to apply the Americans with Disabilities Act (ADA) to the Internet. In the past few years, lawsuits have been filed against America Online, Barnes and Noble, and Claire's Stores alleging that their websites violated the ADA, but the cases were either settled out of court or dropped when the company agreed to make its software compatible with devices designed for visually impaired users. In late 2002, in the first cases to come to trial, one federal judge ruled that Southwest Airlines does not have to revamp its website and virtual ticket counters, while another federal judge ruled that the Atlanta, Georgia mass transit agency violated the ADA by constructing a website that was inaccessible for people with visual disabilities. Though both cases involved the ADA, Southwest was decided under Title III of the ADA while the MARTA case fell under the very different provisions of Title II. Still, there is a fairly good chance that the issue appears to be destined for the U.S. Supreme Court where the outcome will determine whether the same law that requires movie theaters, department stores, and other public spaces to provide ramps and other accommodations for the disabled also applies to cyberspace. This paper explores the crucial issues implicated in recent court challenges to inaccessible websites and the resulting legal ramifications.
THE DISABLED AND THE DIGITAL DIVIDE
Computer use and Internet access are becoming increasingly commonplace in homes, at schools, and on the job. These information and communication tools are especially important for those who have physical or mental constraints, as these technologies can help overcome many of the challenges they face. Data from two important studies, "A Nation Online" by the U.S. National Telecommunications and Information Administration (NTIA) and "Who's Not Online" by the Pew Internet and American Life Project, show, however, that people with disabilities are less likely than the overall population to use computers or the Internet.
The "Nation Online" report was the first one to provide an in-depth assessment of the relationship of disabilities to the digital divide. The report noted that about 8.5% of the population suffered from at least one of five types of disabilities: severe vision impairment; severe hearing impairment; difficulty walking; difficulty typing; and difficulty leaving home. These disabilities became more prevalent with age -- only 1.3% of children under 15 have at least one of the disabilities examined here, while almost 30% of the population aged 65 and older has at least one of these limitations.
Plus, the problem is more dramatic for individuals who are older. The NTIA report illustrated that less than 2% of those aged 3-24 had at least one of the five disabilities. While those with disabilities reported lower computer and Internet usage from home, computer and Internet use from other locations (such as school) evened out the disparity with the non-disabled.
After the age of 24, however, the situation begins to get worse. About 7.3% of individuals between the ages of 25 and 60 have at least one of the five disabilities. Those who have at least one of these disabilities are less likely than those without a disability to live in a home with a personal computer, and, even if they do have a computer, these individuals are less likely to use it or the Internet. The one exception here is for individuals with a severe hearing impairment. This is not surprising given that the computer is at present more of a visual medium than an aural one. In addition, people with disabilities are more likely than the population in general to use the Internet to play games and search for health information.
People over age 60 are less likely than other age groups to have a computer in their home or to use the PC or the Internet in the home, and, for those with a disability, the use rates are even lower. In addition, people in this age group are much less likely to use the Internet outside of the home. Because the incidence of disability increases with population age (29% of people with disabilities are 65 years or older, while only 11% of people without disabilities are this age), people with disabilities are much more likely than other Americans to be retired (35% versus 12%) and widowed (18% versus 7%) (NTIA, 2002; Pew, 2003).
Both the NTIA and Pew Reports indicate that non-users of the Internet are much more likely to be disabled than Internet users -- 26% of non-users report a disability, compared to 12% of Internet users. Twenty-eight percent of the people with disabilities who are not online say their disability makes it difficult or impossible to use the Internet. People with disabilities who are non-users demonstrate less interest in gaining access than those non-users without disabilities. Forty percent of them said they definitely would not ever go online, compared to only 24% of non-disabled respondents. Two major reasons that they eschew using the Internet is that they lack time and that getting to places in the community with Internet access was difficult for them. People with disabilities were less likely to know of a place in their neighborhood to get access than people without a disability and were less likely to know of a friend or family member who has a computer with Internet access. Finally, people with disabilities who choose to stay offline find the technology too confusing for them.
There are other important demographic differences between people with disabilities and people without in terms of electronic and information technology use. First, people with disabilities have considerably less education. While 14% of the U.S. population lacks a high school diploma, 22% of disabled Americans do. In addition, 26% of the non-disabled population possesses college undergraduate or graduate degrees, compared to 18% of those with disabilities (NTIA, 2002). As such, many people with disabilities are not in an environment (school) where they might be exposed to electronic and information technology.
Users with disabilities tend to have less experience with computers and the Internet than their non-disabled counterparts (Pew, 2003). They also are more likely than other Internet users to have access only at home (58%) than the non-disabled (44%). In addition, there are important similarities and differences between the disabled and the non-disabled in terms of their Internet usage. Online, the disabled and non-disabled use email, visit news websites, and access government websites with about the same amount of frequency. On the other hand, the disabled are somewhat less likely to buy a product (52% for the disabled versus 56% for those who are not) and look for leisure activity information (69% versus 74%). Conversely, disabled users are more likely to look for medical information (75% versus 59%), play a game (45% versus 35%), and research online for information about a particular person (37% versus 26%).
Another important area of difference between the disabled and non-disabled is employment. The disabled are much less likely to be employed full or part time (33% to 73%). Individuals who have motor skill difficulties are far less likely to be employed than non-disabled people. People with either a vision or hearing disability or with multiple disabilities are less likely to use a computer at work than others. When they do use the computer, they tend to connect less to the Internet or communicate via email.
DISABILITY AND TECHNOLOGY
According to the Pew Report, the disabled seem to be more attached than others to the technology and media in their homes. They are more likely than other Americans to say it would be very hard to give up their telephones, televisions, cable TV hookups, and their favorite newspapers. It should be noted that only 56% of the disabled reported having a computer compared to 72% of all Americans. People with disabilities (17%) also indicated that they were less likely than non-disabled people (28%) to say it would be very hard to give up their computer (Pew, 2003). These attitudes may result from the frustration of not being able to access computer technology without the appropriate adaptive technology.
Exacerbating this problem is that the disabled have much lower incomes than the non-disabled. Slightly less than one-third (29%) live in a household with less than $20,000 income per annum. By contrast, only one in eight individuals without disabilities (12%) live in households with incomes that low. Because people with disabilities live in households with lower incomes, they often lack the financial resources to obtain adaptive information technology (such as large monitors, magnified screens, hands-free mice and keyboards, speech synthesizers, etc.), which can cost thousands of dollars. Thus, not only are the physical limitations of those people with disabilities an obstacle to participating in cyberspace (because the technological environment often cannot accommodate them), their lack of financial resources represents a serious impediment as well. Twenty-five percent of people with disabilities said they strongly agreed that Internet access is too expensive (Pew, 2003).
Overall, Americans living with disabilities do face unique challenges as they consider using the Internet. Many lack access to adaptive technologies that would help them use computers and the Internet. For many disabled, it is physically daunting for them to get to wired rooms and buildings. Computer work stations at public sites often are not accessible to them because the computer work stations cannot be properly adjusted, or the location fails to have the right furniture, software, or adaptive hardware to make the computer and Internet more usable. In addition, many of the disabled cannot afford the extra cost associated with obtaining the very adaptive technology that would allow them to enjoy the benefits of cyberspace.
Still, going online offers the disabled a number of advantages. The Internet allows them to gain fuller access to information, social contacts, leisure activities, and other services. Having information, shopping, and social resources available in their households is a lifeline that can make the world more accessible for the disabled. In a sense, having Internet access permits the disabled to travel virtual spaces in a way that they cannot travel physical spaces. Unfortunately, the state of the digital divide for the disabled today is such that it is clear that people with disabilities tend to use computers and the Internet at rates below the average for the population. This finding remains even when other factors, such as age, education, or income, are statistically accounted for (NTIA, 2002).
OBSTACLES TO ACCESSING CYBERSPACE: BEYOND ECONOMICS
The economic barriers those who are disabled must overcome to access cyberspace are major obstacles for this group. But, there are two other important barriers as well. The first is the creation of technical standards that would allow disabled users to navigate the Internet. These are standards that not only must work for those with disabilities, but must be consistent across software and operating system platforms. As we will see shortly, the movement to universal standards of accessibility has already begun.
The second issue is that of a public policy that fosters access for the disabled and the creation of laws to codify that public policy. As a matter of public policy, the United States has moved, albeit with “all deliberate speed,” to help eliminate legal and physical barriers for the disabled to more fully participate in the political, social, and economic life of the United States. Two major pieces of legislation, the Americans with Disabilities Act of 1990 (ADA) and the Rehabilitation Act of 1973 Section 508, as last amended by the Workforce Investment Act of 1998 (Section 508), have codified much of that public policy into law. Unfortunately, while Section 508 was amended after the Internet exploded -- literally and figuratively -- into American life in the early 1990's, and applied to governmental websites, the passage of the ADA predated the Internet. Consequently, no specific mention of the Internet occurs in the Act, making it subject to judicial interpretation whether or not the Act applies to the Internet.
DEVELOPING UNIVERSAL STANDARDS
The World Wide Web Consortium (W3C) was created in October 1994. The organization describes its mission as working "to lead the World Wide Web to its full potential by developing common protocols that promote its evolution and ensure its interoperability". Currently, this 450-member international industry consortium jointly run by the MIT Laboratory for Computer Science in the U.S., the National Institute for Research in Computer Science and Control (INRIA) in France, and Keio University in Japan, have spearheaded a Web Accessibility Initiative (WAI). The goal of this initiative is to ensure accessibility of the Web through five activities:
- ensuring that core technologies of the Web support accessibility;
- developing guidelines for Web content, user agents, and authoring tools;
- facilitating development of evaluation and repair tools for accessibility;
- conducting education and outreach; and
- coordinating with research and development that can affect future accessibility of the Web.
According to W3C director Tim Berners-Lee (inventor of the World Wide Web), "Web browsers and media players serve people as the front door to the Web. But when those tools aren't usable by people with disabilities, it's akin to locking the door and leaving no key. For the past five years, the technical and disability experts in the Web Accessibility Initiative have provided definitive guidelines for making accessible Web content and designing authoring software that does the same, automatically." (WC3, http://www.wc3.org).
A critical element of making websites accessible is to develop "text equivalents" for images and other elements in a website. A "text equivalent" may be content presented to the user (using different senses), such as synthesized speech (aural), Braille (tactile), and visually-displayed text (visual). Each of these three mechanisms uses a different sense to make the information accessible to groups representing a variety of sensory and other disabilities.
By December 2002, the W3C has issued three types of guidelines -- Web Content Accessibility Guidelines (WCAG), User Agent Accessibility Guidelines (UAAG), and Authoring Tool Accessibility Guidelines (ATAG). Each of these guidelines follows two important themes of accessible design: ensuring that web pages can transform gracefully for everyone, and that the content of those pages is understandable and navigable for all users.
One of the provisions of Section 508 of the Workforce Investment Act of 1998 was to utilize an Access Board, an independent Federal agency whose mission was to increase the accessibility of the workplace for the disabled as well as develop standards to insure that accessibility. One of the actions of the Access Board was to form the Electronic and Information Technology Access Advisory Committee (EITAAC), a group comprised of leaders from a variety of commercial, public, and not-for-profit organizations. EITAAC has adopted many of the W3C standards for website accessibility. While these guidelines have begun to be applied to public websites, no clear requirements have emerged to which private websites must comply.
Some estimates suggest that as many as 98% of all websites contain some access barrier to people with one or more disabilities (McGrane, 2000). For example, most often websites rely on the use of graphics to convey information that cannot be either translated into text or presented via graphics by electronic screen readers, devices most commonly used by the blind to access web content. Similarly, websites that utilize audio are often not accessible to the deaf.
WEBSITE ACCESSIBILITY AND THE LAW: LEGAL FOUNDATIONS
The signing of the Americans with Disabilities Act (The Americans with Disabilities Act, 42 U.S.C. §§ 12101-12213 (2000)) into law by President George Bush in 1990, represented a watershed piece of legislation for disability rights. Because the ADA and other legislation came before the adoption of the Internet as a mass medium of communication, however, these laws could not address the Internet. Because adaptive technology has the potential for the disabled to use the Internet, we are presently faced with a crossroads where information and communication technology and the law now meet. The critical question to answer at this crossroads is whether the ADA can be extended to cover cyberspace. The answer to this question lies in the interpretation of the provisions of two major pieces of legislation -- Title III of the ADA and Section 508. The critical issue is whether Title III can be extended to the Internet as a place of public accommodation even when the ADA did not explicitly mention the Internet in the Act itself.
The ADA is comprised of five titles addressing the topics of employment, public services, public accommodations and services operated by private entities, telecommunications, and miscellaneous provisions. The title most relevant to the Internet is Title III. Title III of the ADA mandates that the disabled be able to participate "in the full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation." (The Americans with Disabilities Act, 42 U.S.C. §§ 12187 (2000))
The key term in Title III is place of public accommodation. For example, the courts ruled that Casey Martin, a Professional Golf Association member, could ride a golf cart in tournaments because he has a disabled leg. The judges concluded that a golf course -- a physical space -- constituted a public accommodation. But, websites are not physical places. They exist as a configuration of electrons and, hence, are virtual places. Can a virtual place, such as a website, be a public accommodation in the same way as a physical place, such as a golf course?
Before 2002, most cases that had examined Title III and the concept of place of public accommodation suggested that it did not apply to the Internet and World Wide Web. In 1994, the First Circuit Court of Appeals held that public accommodations are not limited to physical places by finding that a business did not have to be "bricks and mortar" to qualify as a "public accommodation." The case involved Ronald J. Senter. In May 1986, Senter was diagnosed as HIV positive and, by March 1991, he had developed full-blown Acquired Immune Deficiency Syndrome (AIDS). He died on January 17, 1993, before the decision in the case was handed down. At the time of his illness, Senter was president of Carparts Distribution Center, Inc. ("Carparts"), an automotive parts wholesale distributor incorporated in New Hampshire. His health insurance was provided by the Automotive Wholesalers Association of New England Health Benefit Plan. In October 1990, the health plan informed Carparts that it was amending its benefits plan to cap lifetime AIDS-related benefits. In addition, the health plan began denying reimbursement to Senter for illnesses not related to his HIV status. The defendants, the Association, argued that since it was not a place of public accommodations (covered individuals and insurance beneficiaries never had to go there in person), it couldn't be covered by Title III of the ADA. The plaintiffs (first, Senter, then his estate), disagreed, and filed suit under the ADA.
The federal district court dismissed all of plaintiffs' claims on July 19, 1993. Senter's estate appealed, claiming alleged violations of Title I and Title III of the ADA. The U.S. Court of Appeals for the First Circuit reversed the state court and remanded the case for further review.
Regarding Title III, the public accommodations portion of the ADA, the court declared:
By including 'travel service' among the list of services considered 'public accommodations,' Congress clearly contemplated that 'service establishments' include providers of services which do not require a person to physically enter an actual physical structure. Many travel services conduct business by telephone or correspondence without requiring their customers to enter an office in order to obtain their services. Likewise, one can easily imagine the existence of other service establishments conducting business by mail and phone without providing facilities for their customers to enter in order to utilize their services. It would be irrational to conclude that persons who enter an office to purchase services are protected by the ADA, but persons who purchase the same services over the telephone or by mail are not. Congress could not have intended such an absurd result. (Carparts Distrib. Ctr, Inc. v. Automotive Wholesaler's Ass'n of New England, Inc. 37 F.3d 12, 19 (1st Cir. 1994)).
In other words, the term "public accommodation" could be extended to virtual spaces. The court reasoned that to "limit the application of Title III to physical structures which persons must enter to obtain goods and services would run afoul of the purposes of the [Disabilities Act] and would severely frustrate Congress's intent that individuals with disabilities fully enjoy the goods, services, privileges and advantages, available indiscriminately to other members of the general public" (Carparts Distrib. Ctr, Inc. v. Automotive Wholesaler's Ass'n of New England, Inc. 37 F.3d 12, 19 (1st Cir. 1994)).
This same concept of a public accommodation not having to be a physical location was also at issue in Doe v. Mutual of Omaha Ins. Co. The Seventh Circuit Court ruled in that case that a website could qualify as a public accommodation. Specifically, the Court declared that "the owner or operator of a store, hotel, restaurant, dentist's office, travel agency, theater, web site, or other facility (whether in physical space or in electronic space) that is open to the public cannot exclude disabled persons from entering the facility and, once in, from using the facility in the same way that the non-disabled do" (Doe v. Mutual of Omaha Ins. Co., 179 F.3d 559 (7th Cir. 1999), cert. denied, 68 U.S.L.W. 3432 (U.S. Jan. 11, 2000) (No. 99-772)).
Finally, in Pallozzi v. Allstate Life Ins. Co. (198 F.3d 28 (2d Cir. 1999)), the Second Circuit Court found that Title III of the ADA was meant to grant the disabled "more than mere physical access." The court further ruled that "an entity covered by Title III is not only obligated by the statute to provide disabled persons with physical access, but is also prohibited from refusing to sell them its merchandise by reason of their disability" (Pallozzi v. Allstate Life Ins. Co., 198 F.3d 32 (2d Cir. 1999)).
Yet, it should be noted that not all court decisions have reached the same judicial interpretation of what constitutes a public accommodation. Two cases, Parker v. Metropolitan Life Insurance Co. (Parker v. Metropolitan Life Insurance Co., 121 F.3d 1006, 1008 (6th Cir. 1997)) and Ford v. Schering-Plough Corp. (Ford v. Schering-Plough Corp. 145 F.3d 601, 612-13 (3d Cir. 1998)), both ruled that a public accommodation was limited to a physical facility or at least a physical location
On November 4, 1999, the National Federation for the Blind (NFB) sued the Internet service provider America Online (AOL) for failing to make their services accessible to the disabled. Specifically, the plaintiffs argued that people who are blind and use computers can access them through screen access programs which monitor the computer screen and convert the textual information displayed into synthesized speech (or Braille on a device known as a refreshable Braille display). These screen access programs will function effectively if commercial applications function in a standard way. For example, the commercial application must provide textual labels for all graphics, permit keyboard access to all functions, move the focus whenever the keyboard is used, and rely upon standard Windows controls (e.g., dialog boxes, combination boxes, list boxes, edit boxes, and push buttons). AOL requires the user to run proprietary AOL software in order to access and use the AOL Internet service. This software does not operate in a standard way. It contains unlabeled graphics, mouse-only activated commands, and custom (non-standard) controls, none of which can be used by screen access software. In fact, blind users would find it almost impossible to sign up for AOL because much of the text used in signing up is unlabeled graphics.
Consequently, the plaintiffs argued that because the AOL service is not independently accessible to them, they were unable to use many of AOL's features, such as its electronic mail services, "buddy list" features, chat rooms, and AOL's "channels" that provide an array of informational, entertainment, and commercial content covering news, sports, games, finance, shopping, health, travel, kids, and other subjects. In addition, the plaintiffs would not be able to access AOL's "personalization and control features" that permit members to engage in activities ranging from checking their stock portfolios to monitoring their children's Internet access.
NFB and AOL settled their case before it went to trial. The settlement resulted in AOL promising to make future versions of its software accessible to the blind while the NFB reserved its right to refile the complaint in the future.
The following year, in April 2000, NFB sued the Connecticut Attorney General's Office for providing links to four tax filing services on its Internal Revenue Service's official website which were not accessible to the visually impaired. Again, the case was settled; the four tax filing services agreed to make their websites accessible by the next year's tax season. Similar suits have been threatened or filed against a variety of institutions. The California Council of the Blind threatened complaints against both Bank of America and Wells Fargo Bank. After considerable negotiation, both banks not only made their ATMs more accessible, but their websites as well. Access Now, an ADA advocacy group from South Florida, has sued bookseller Barnes and Noble and retailer Claire's Stores charging that their websites were not accessible to those with disabilities. All these cases settled before going to trial, despite the observation by the court overseeing the Barnes and Noble settlement that "no court has held that Internet websites made available to the public must be accessible" (Dolan, 1999; Mayfield, 2002).
In 2002, three court decisions served to further confuse the issue of whether or not a website is a place of public accommodation under the ADA. The first case did not address the issue of a website per se, but was used as a precedent. The ABC TV network's popular show "Who Wants to be a Millionaire" spawned a lawsuit that involved Title III of the ADA. In Rendon v. Valley Crest Prods., Ltd. (2002), several people with hearing or upper-body mobility deficits charged that the "fast finger telephone selection process" used to qualify the show's contestants violated the ADA (Rendon v. Valley Crest Prods., Ltd. 294 F.3d 1279 (11th Cir. 2002). In June 2002, the court found 1) that the telephone system used to become a contestant on the show was a "service establishment" under the ADA; and 2) that there was a "nexus" between the use of the telephone for the "fast finger" process and access to a "public accommodation", the physical location of the game show's television studio (Steinberg, 2002, November 8). The court thus concluded that the fast finger process discriminated against the disabled plaintiffs.
The second case to emerge in 2002 was the first case to specifically address the question of whether or not Title III of the ADA applies to private websites. In Access Now v. Southwest Airlines, Co. (Access Now v. Southwest Airlines, Co., Case No. D2-21734-CIV-Seitz/Bandstra (S.D. Fla., October 18, 2002)), the plaintiffs, the aforementioned advocacy group Access Now and Robert Gumson, a blind man, filed a complaint asserting that Southwest Airline's website, www.southwest.com, was not accessible to the plaintiff. Access Now asserted that this was a violation of the ADA because "the goods and services Southwest offers at its 'virtual ticket counters' are inaccessible to blind persons" (Access Now v. Southwest Airlines, Co., Case No. D2-21734-CIV-Seitz/Bandstra (S.D. Fla., October 18, 2002) at 1). The airline responded by filing a motion to dismiss the complaint because their website did not constitute a place of accommodation and, thus, was not subject to Title III of the ADA.
The U.S. District Court for the Southern District of Florida ruled in favor of Southwest's motion to dismiss. In its decision, the court declared "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" (Access Now v. Southwest Airlines, Co., Case No. D2-21734-CIV-Seitz/Bandstra (S.D. Fla., October 18, 2002) at 13-14).
What the court did in Access Now was to more narrowly define what constitutes a "place of public accommodation." The court rejected the rationale of Carparts by asserting that court's interpretation of a place of public accommodation was too broad. In addition, unlike Rendon, the court believed the plaintiffs failed to "establish a nexus between southwest.com and a physical, concrete place of public accommodation" as the Plaintiff's did in Rendon (Access Now v. Southwest Airlines, Co., Case No. D2-21734-CIV-Seitz/Bandstra (S.D. Fla., October 18, 2002) at 23). Thus, the only case that is directly on point, squarely addressing the applicability of Title III of the ADA to private websites, concluded that the ADA does not apply.
At almost the same time that the Access Now case was being decided, a Georgia court ruled that the Atlanta mass transit system website was inaccessible to the disabled and thus discriminatory. In Vincent Martin et al. v. Metro. Atlanta Rapid Transit Authority (Vincent Martin et al. v. Metro. Atlanta Rapid Transit Authority, No. 1:01-CV-3255-TWT, at 34 (N.D. Ga. Oct. 7, 2002)) the U.S. District Court for the Northern District of Georgia held that the Metro Atlanta Rapid Transit Authority ("MARTA") website violated the ADA because it was inaccessible to those with visual impairments. The court declared that MARTA would be in violation of the ADA until it reformatted its website so that it could be seen via screen readers.
The plaintiffs in the Martin case filed suit under both the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794 et seq., and Title II of the ADA, not Title III as in the Southwest case. Title II guarantees that qualified individuals are prevented from being "excluded from participation in or [being] denied the benefits of the services, programs, or activities of a public entity, or [being] subjected to discrimination by any such entity." 42 U.S.C. § 12132. The key term here is “public entity,” which Title II of the ADA defines as “(A) any State or local government; (B) any department, agency, special purpose district, or other instrumentality of a State or States or local government; and (C) the National Railroad Passenger Corporation, and any commuter authority ...” 42 U.S.C. § 12131.
What makes this case confusing is that the Clinton administration implied that this mandate applies to both websites created and maintained by the federal government and those of states who receive federal funds under the Technology Related Assistance for Individuals with Disabilities Act of 1988. The current Bush administration has not endorsed this interpretation, nor has, to date, any court. In addition, Section 508 applies only to government websites and not private ones; nothing in Section 508 applies to websites created and maintained by private individuals or organizations. One aspect of this case that needs to be determined is whether or not MARTA’s website is a governmental website.
WHAT DOES THE FUTURE HOLD?
If nothing else, recent court rulings give the appearance of being conflicting. The legal reality may be different, but often perception is reality. As such, the question of whether or not a private website constitutes a place of public accommodation as defined by the Americans with Disabilities Act will likely be decided by the U.S. Supreme Court. Which way they will decide is difficult to predict. On the one hand, the present conservative tenor of the Court suggests that it will be reluctant to extend the powers of the federal government through expansive interpretations of concepts such as "place of public accommodation." On the other hand, the Supreme Court in May 2003 ruled that state workers can sue their employers when denied time off to care for a sick relative. By a 6-3 vote, the Court said the nation's five million state workers have the right to sue for money damages under the Family and Medical Leave Act, a 1993 law that gives most public and private workers up to 12 weeks of unpaid leave to care for someone. That decision countered the recent trend of the Court protecting states from lawsuits brought by individuals seeking benefits under federal law (Biskupic, 2003, May 28). Though whether workers can or cannot sue their state government employers under one law has little predictive value of whether private website operators can be held accountable under another, it does suggest the difficulty in attempting to predict which way the current Court is going to rule on any case.
Since the Internet became widely available to the public a decade ago, roughly 65% of the U.S. population now has gained access to it. Assuming a growth rate of 5% per year, Internet penetration will reach 87% of the population by 2008 (Bruner, 2002). The Internet has quickly become an invaluable tool and communication medium for people around the world. Consequently, it is critical for those living in the 21st century to have access to the Internet so they can participate in the political, economic, and social opportunities available through this new medium. If, joining with the efforts of those in the research, education, and outreach communities, either the U.S. Congress or the Supreme Court acts to clear the policy and legal obstacles that threaten to leave some Americans behind, we can assure that everyone -- including those with disabilities -- can participate in the cybersociety of the new millennium. Indeed, the momentum created by policies and practice in the U.S., one of the leaders on disability access issues, will guide other nations as they attempt to chart a course for a more just, honorable, compassionate, and inclusive civil society in the digital age.
Access Now v. Southwest Airlines, Co., Case No. D2-21734-CIV-Seitz/Bandstra (S.D. Fla., October 18, 2002) at 1.
Biskupic, J. (2003, May 28). Justices affirm family leave act. USA Today.
Bruner, R. (2002) "U.S. Internet Growth Coming to an End?" MediaPost's Media Daily News. November 1, 2002. Available at: http://www.mediapost.com/dtls_dsp_news.cfm?newsID=186301.
Carparts Distrib. Ctr, Inc. v. Automotive Wholesaler's Ass'n of New England, Inc., 37 F.3d 12, 19 (1st Cir. 1994).
Doe v. Mutual of Omaha Ins. Co., 179 F.3d 557-9 (7th Cir. 1999), cert. denied, 68 U.S.L.W. 3432 (U.S. Jan. 11, 2000) (No. 99-772).
Dolan, M. "Bank to Offer Talking ATM's." Los Angeles Times, August 1999. Available at http://www.mdtap.org/tt/1999.08/4-art.html.
Ford v. Schering-Plough Corp, 145 F.3d 601, 612-13 (3d Cir. 1998).
Lenhart, A. (2003). "The ever-shifting Internet population: A new look at Internet use and the digital divide." Report of the Pew Internet and American Life Project. Available at: http://www.pewinternet.org/reports/toc.asp?Report=88.
Mayfield, K. "Man Sues Airlines for Fare Access." October 1, 2002. Available at http://www.wired.com/news/print/0,1294,55708,00.html.
McGrane, S. (2000) "Is the Web Truly Accessible to the Disabled?" CNET, January 26, 2000. Available at: http://www.cnet.com/specialreports/0,10000,0-6014-7-1530073,00.html.
National Federation of the Blind v. America Online, Inc., No. SA-99-CA-214-EP (D. Mass. Filed Nov. 4, 1999), Complaint P 15. Available at: http://www.libertyresources.org/news/aol_1.html.
National Telecommunications and Information Administration (2002). "A nation online: How Americans are expanding their use of the Internet." U.S. Department of Commerce: Washington, DC. Available at: http://www.ntia.doc.gov/ntiahome/dn/html/anationonline2.htm.
Pallozzi v. Allstate Life Ins. Co., 198 F.3d 28, 32 (2d Cir. 1999).
Parker v. Metropolitan Life Insurance Co., 121 F.3d 1006, 1008 (6th Cir. 1997).
Rendon v. Valley Crest Prods., Ltd. 294 F.3d 1279 (11th Cir. 2002).
Vincent Martin et al. v. Metro. Atlanta Rapid Transit Authority, No. 1:01-CV-3255-TWT, at 34 (N.D. Ga. Oct. 7, 2002).  See note 79.
Workforce Investment Act of 1998, Sec. 508. Electronic and Information Technology. PL 105-220, 1998 HR 1385. PL 105-220, enacted on August 7, 1998, 112 Stat 936 codified as: Section 504 of the Rehabilitation Act, 29 U.S.C. § 794d. Available at http://www.usdoj.gov/crt/508/508law.html.
36 C.F.R. Part 1194 (2000). Electronic and Information Technology Accessibility Standards. Available at http://www.access-board.gov/sec508/508standards.htm.