WebAIM - Web Accessibility In Mind

E-mail List Archives

Why was software (user agents and authoring tools) left out of the recent SANPRM for the ADA by the DOJ?

for

From: Moore,Michael (Accessibility) (HHSC)
Date: May 16, 2016 8:19AM

Since there has been a lot of discussion of this apparent oversite I thought that I would make an attempt to explain.

The ADA covers three areas:

Title 1 Employment

Prohibits discrimination against people with disabilities in employment. Employers are not allowed to discriminate against a person who can perform the essential functions of a job because they have a disability. The employer must provide a "reasonable" accommodation for people with disabilities. Thus an employer would be expected to purchase accessible software needed to perform a job along with the assistive technology needed to use a computer in an office place. However, if none of the software that was available in the market place to perform a particular job function was accessible then the employer would not be obligated to develop their own.

Title 2 Public Services (This is the title covered by the SANPRM)

Prohibits discrimination against people with disabilities in the provision of public services. This means that information about the services, the application process, service delivery process, and any associated account management must be accessible to people with disabilities. The provision does not require fundamentally altering a service. The service provider is also protected from "undue burden" Much of the SANPRM at least on my first pass through appears to further define "undue burden" and fundamental alteration and does seem to place more responsibility on the agency providing the service to find and utilize accessible web based services when services are provided via the web.

Title 3 Public Accommodations and Services Operated by Private Entities

Prohibits discrimination against people with disabilities in private businesses that are open to the public. This one is where a lot of the action has been. The DOJ has interpreted the law to include on-line businesses and court decisions have backed them.

The problem is that the authoring tools, CMS/LMS systems, frameworks, script libraries and the rest of the stuff that is used to build services and put them on the web simply do not fall under the scope of the ADA. For open source project you could not even hold the project owners accountable as an employer. Yes Microsoft, Google, and Apple must make their workplace and public websites accessible but not necessarily their software...

Requiring that software, including authoring tools and plug-ins for websites be accessible will likely require additional action by congress. I will leave it to you to decide whether it is something that you would support and if so how it might actually be accomplished. The idea behind Section 508 and various state laws was at least partially to create commercial demand from federal and state agencies for accessible ICT (Information Communication Technology) products. Unfortunately, in many sectors no vendors are providing fully accessible products to so government agencies are forced to buy what is available.

Mike Moore
Accessibility Coordinator
Texas Health and Human Services Commission
Civil Rights Office
(512) 438-3431 (Office)