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RE: Accessibility is a Right

From: Waddell, Cynthia <cynthia.waddell@ci.sj.ca.us>
Date: Tue, 25 Aug 1998 10:18:30 -0700
To: Kynn Bartlett <kynn-hwg@idyllmtn.com>, Charles McCathieNevile <charlesn@sunrise.srl.rmit.edu.au>, "'Norman G. DeLisle, Jr.'" <ndelisle@email.msn.com>
Cc: WAI <w3c-wai-ig@w3.org>
Message-id: <3EC0FC2EAE6AD1118D5100AA00DCD883013D15A8@SJ_EXCHANGE>
This thread has a number of errors in the discussion concerning the nature
of the civil right protected under the Americans with Disabilities Act of
1990.  Having returned from vacation, I would like to clarify the legal
requirements, if I may.

First, the ADA is not a protected right limited to Americans only.  Although
it is a US law and has within the title "Americans," the ADA (Interpretive
Guidance Section 1630.1(a)) protects all qualified individuals with
disabilities, regardless of their citizenship status or nationality.
Enforcement is applied equally to all American businesses and entities
whether or not they are operating in the US or abroad.

Second, the legal standard as it applies to the internet per the USDOJ
policy ruling is "effective communication" and not "readily achievable."
Effective communication is a higher burden equally applicable to both
business and government.  The ADA standard for communications is very
different from the removal of physical barriers.  Effective communication
under the ADA is provided through "auxiliary aids and services."  An
individual's request for accessible web design must be honored unless the
entity can demonstrate another equally or more effective means of
communication or that the request would cause a fundamental alteration or
undue burden.

This response is to provide legal information only and not advice.  A brief
summary of my law lecture at Santa Clara University School of Law
Telecommunications and Technology Law class can be found at
http://www.rit.edu/~easi/law/weblaw1.htm

Sometimes it is forgotten that the purpose of the ADA is to prevent
discrimination against people with disabilities in their access to goods,
programs, services, activities or facilities.  Ignorance of barriers to
effective communication is no defense to the violation of this civil right.
At one time people using wheelchairs were not entering buildings, not
because they did not want to be there, but because there was not an
accessible entrance or path of travel within the building.  Effective
communication requires accessible web site design that includes an
accessible entrance and navigation capability.  Without this civil right,
the marketplace would determine consumer needs and the voice of people with
disabilities would not be heard.

The efforts of the WAI and other entities to enable the industry to address
the removal of barriers to effective communication is certainly welcome by
all of us in the disability community.

Cynthia D. Waddell
---------------------------------
Cynthia D. Waddell   Cynthia.Waddell@ci.sj.ca.us
ADA Coordinator       City of San Jose, CA

801 North First Street, Room 460
San Jose, California 95110-1704
(408)277-4034
(408)971-0134 TTY
(408)277-3885 FAX


> ----------
> From: 	Norman G. DeLisle, Jr.
> Sent: 	Wednesday, August 19, 1998 4:48 AM
> To: 	Kynn Bartlett; Charles McCathieNevile
> Cc: 	WAI
> Subject: 	RE: Accessibility is a Right
> 
> The Americans with Disabilities Act and its regulatory apparatus makes
> accessibility a right for persons with disabilities under certain
> circumstances.  In this case, the "amount" of accessibility that a given
> site has to provide partly depends on whether the site is government or
> privately sponsored.  Also, a set of definitions for web accessibility and
> other things similar was recently issued as part of the development of the
> ADA.
> 
> In general, government sites have to meet a higher standard of access than
> private sites; I am no expert, but the overall standard for private sites
> would be accessibility that is readily achievable.
> Given the nature of markup languages, it makes some sense that the
> standard
> of "readily achieveable" will be pretty high for web sites.  However, none
> of this has been tested yet.
> 
> Time will tell-but my guess is that the expectations from a legal
> perspective will be fairly high for sites.
> 
> Kynn Bartlett writes:
> 
> > Where do rights come from, and who
> > makes the decision, "this is a right"?
> >
> > Again, no flames please, and bear in mind that we're on the same
> > side -- I just want to hear the logic behind this statement.
> >
> > --
> > Kynn Bartlett  <kynn@idyllmtn.com>
> http://www.idyllmtn.com/~kynn/
> Chief Technologist & Co-Owner, Idyll Mountain Internet; Fullerton,
> California
> For your user-defined stylesheet: .GeoBranding { display: none !
> important; }
> Enroll now, for my HTML 4.0 Accessibility Class:
> http://www.hwg.org/classes/
> 
> 
> 
Received on Tuesday, 25 August 1998 13:18:33 GMT

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