Disability discrimination legislation and the web

1
Disability discrimination legislation and the
web

• 9 June 2005
• Martin Sloan, Solicitor
• Brodies LLP
• Email martin.sloan_at_brodies.co.uk
• http//www.brodies.co.uk

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Outline

• Introduction to accessibility
• Legal background
• Maguire v SOCOG
• Education
• Employment
• Conclusions

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• The Times, 14 April 2004

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Introduction to accessibility

• Original concept of the Internet
• Platform (ie hardware) independent
• Universal (ie for all)
• Method of sharing information irrespective of
  disability

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How do people with disabilities use the Internet?

• Screen magnifier
• Custom style sheets (CSS)
• Screen reader software
• Braille displays
• Keyboard
• Alternative input devices

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Why are websites inaccessible?

• Erosion of these principles
• Blurring of design vs content principles
• Use of proprietary (ie non-standard) technologies
• Flash, Java, Shockwave, PDFs
• Content provided in non-HTML format

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What problems do inaccessible websites cause?

• Visually impaired person may not be able to read
  content displayed in graphical form (eg using
  images, video, Flash)
• Use of Java to control navigation may not be
  accessible to someone who cannot use a mouse
• Content made available in audio format may be
  inaccessible to someone with hearing impairments
• Not just websites - also applies to software
  applications!

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Common accessibility barriers

• Reliance on graphics
• Video and audio content
• bad site design/usability issues
• Use of inaccessible formats eg Flash, PDFs etc

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But I thought that PDFs were accessible?

• Latest versions of some proprietary technologies
  include accessibility features
• But the user may need to have the latest
  software/hardware to use these
• How do you know what hardware/software your
  customers are using?
• Legacy content
• Remember that correctly coded HTML is the most
  accessible format for ALL users

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Web Accessibility Initiative

• World Wide Web Consortium (W3C)
• Web Accessibility Initiative (WAI)
• Web Content Accessibility Guidelines (WCAG)
• Authoring Tool Accessibility Guidelines (ATAG)
• User Agent Accessibility Guidelines (UAAG)
• Launched in May 1999
• Version 2 guidelines currently in draft form
• But remember that ticking all the boxes does not
  necessarily mean your site is accessible user
  test

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WAI Content Guidelines

• Guidelines and checkpoints
• Three levels
• Level A (Priority 1) must do
• Level AA (Priority 2) should do
• Level AAA (Priority 3) may do
• BUT should not just rely on ticking boxes
• User testing and auditing

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Commercial advantage?

• Remember boo.com?
• An accessible site is likely to be more usable to
  all
• PDAs
• Smartphones
• Web TV etc
• Untapped market - 40bn spending power

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What does the law say?

• Disability Discrimination Act 1995 (DDA)
• Part II employment (pre-1999)
• Part III providers of goods, facilities,
  services and premises (October 1999)
• Part IV education (October 2002)

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Codes of Practice

• Codes of Practice
• Part II Code of Practice
• Part III Code of Practice
• Part IV Code of Practice
• flesh out the DDA
• Provides guidance and aims to avoid legal action
• Not an authoritative statement of the law

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Disability Discrimination Act 1995

• a universal, all embracing right of
  non-discrimination against disabled
  peopleapplicable to all providers of goods,
  facilities and services to the general public.
• Minister for Social Security and Disabled People
• Hansard, H.C. Standing Committee, E col.290

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Part III obligations

• Applies to Service providers
• Duties set out under section 19
• Not to refuse to provide or deliberately not
  provide any service which he provides or is
  prepared to provide to the public
• To comply with any s.21 duty to make reasonable
  adjustments
• Not to provide a lower standard or manner of
  service

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Discrimination defined

• A provider of services discriminates against a
  disabled person if
• For a reason which relates to the disabled
  persons disability, he treats him less
  favourably than he treats or would treat others
  to whom that reason does not apply, and
• He cannot show that the treatment in question is
  justified

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Who is a Service Provider?

• Not defined in either the Act or the Code
• Non-exhaustive examples listed
• access to and use of information services
• drafted in pre-Internet era
• Act explicitly includes free services
• Part III does not generally apply to educational
  institutions (Part IV) but does apply to local
  authorities/public sector

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The American Approach

• Carparts Distribution Center Inc..
• It would seem 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 telephoneare
  not. Congress could not have intended such an
  absurd result
• Carparts Distribution v Automotive Wholesalers
  Association of New England Inc
• No. 93-1954 37 F.3d 12 1994 US App LEXIS 28319
• Analogous to the Web and e-commerce
• Revised Code of Practice

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Duties under the Act

• s.19(1) Service provider has a duty
• not to refuse to provide or deliberately not
  provide any service which he provides or is
  prepared to provide to the public
• to comply with any s.21 duty to make reasonable
  adjustments
• not to provide a lower standard or manner of
  service

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Refusal to Provide a Service

• Where a service provider has deliberately chosen
  not to make his site accessible
• Requires knowledge
• But in reality very few sites cannot be made
  accessible
• Where accessibility is deliberately ignored by
  the service provider

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Lower Standard of Service

• Analogy in the Code
• a bookshop which orders books for customers, but
  refuses to order a large print book for a
  visually impaired person
• Could apply in several situations
• supermarket home shopping service
• online current account offering advantageous
  interest rates

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Reasonable adjustments

• Where a provider of services has a practice,
  policy or procedure which makes it impossible or
  unreasonably difficult for disabled persons to
  make use of a serviceit is his duty to take such
  steps as are reasonableto have to take in order
  to change that practice, policy or procedure so
  that it no longer has that effect (s.21)

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What is a reasonable adjustment?

• Reasonableness is an objective term
• Is it reasonable to provide an accessible Web
  site where it had previously been inaccessible?
• Main opposition is cost and work involved
• Question has been considered by a court in
  Australia

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Maguire v SOCOG

• Visually impaired computer user
• Action under the Commonwealth DDA
• Site was inaccessible
• no ALT attributes on images used for navigating
• index of Sports was inaccessible from the
  schedule page
• tables used in layout of results were inaccessible

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Maguire v SOCOG the findings

• Commission found that
• SOCOG was intending to offer a service to the
  public by creating the Website
• the site was inaccessible
• SOCOGs claims of unjustifiable hardship were
  rejected

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Unjustifiable hardship

• SOCOG argued fixing the site would cost Au2m
• Expert witnesses disputed this
• W3C Guidelines
• Evolutionary site
• Continuing duty to comply

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Relevance of Maguire v SOCOG

• Reference to WAI Guidelines
• first time the Guidelines have been referred to
  in a court of law
• gives an indication of the standard for
  accessibility expected by a court
• Strict interpretation of undue hardship
• Likely to followed by UK courts
• Roads v Central Trains Limited

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Education

• Originally excluded from the DDA
• SEN and Disability Act 2001 introduced a new Part
  IV of the DDA
• Reasonable adjustments to student services
• lectures
• course materials/e-learning
• examinations

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Remedies

• Legislation gives civil remedies rather than
  criminal proceedings
• Service provider has duties, not site
  host/designer/IT supplier
• Remedies?
• specific implement/interdict
• damages for injury to feelings and derivative
  economic loss

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Employment

• Employment dealt with under Part II of the DDA
• employers duty to make adjustments
• Relevant to internal intranets/extranets used by
  employees in the course of employment
• Need to consider the accessibility of internal IT
  provision including hardware/software

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Current position in the UK

• Local authority websites
• Government guidance in England Wales
• DRC Formal Investigation into Web Access
• first formal investigation by DRC
• highlighted that a large number of websites are
  inaccessible
• DRC may take enforcement action
• EU action?

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Good practice?

• Review existing online content
• audit by accessibility consultants/WAI Guidelines
• consider reasonable adjustments
• New websites
• review ITT requirements/specification
• Contractual issues warranties/indemnities
• Accessibility statement on website

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Summary

• Strong case for arguing that the DDA applies to
  the Web
• Test case likely in the near future
• DRC Investigation
• Duty is evolving and continuous
• Remember commercial advantage!

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More information?

• Disability Rights Commission http//www.drc-gb.or
  g
• TechDIS website http//www.techdis.ac.uk
• UK Resources for Web Accessibility and the Law
  http//www.web-access.org.uk
• W3C Web Accessibility Initiative
  http//www.w3.org/wai/