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RE: Undue Burden and AOL

From: Waddell, Cynthia <cynthia.waddell@ci.sj.ca.us>
Date: Fri, 19 Nov 1999 12:34:29 -0800
Message-ID: <3EC0FC2EAE6AD1118D5100AA00DCD8830345AB30@sj-exchange.ci.sj.ca.us>
To: "'Kynn Bartlett'" <kynn-hwg@idyllmtn.com>, David Poehlman <poehlman@clark.net>
Cc: Claude Sweet <sweetent@home.com>, WAI Interest Group Emailing List <w3c-wai-ig@w3.org>
I would just like to remind everyone that the phrases "reasonable
accommodation," "effective communication," and "undue burden" have specific
tests under the Americans with Disabilities Act.

Undue burden is not something that is "not reasonable given the cost" and is
not affected by the size of the population that would benefit from the
accommodation.  Civil rights laws seek to ensure equal access for all- even
if the individual is in a minority.

For those of you interested in learning more about American legal analysis,
I will comment on "undue hardship" as it 
1)applies to employees with disabilities who file claims against their
employers (ADA Title I) 2)applies to members of the public who have a
disability who file claims against businesses and the commercial sector(ADA
Title III).  

These comments cannot be construed to be legal advice since anyone with
particular disability discrimination claims must seek out independent
counsel to address the facts of their case.  

"Undue hardship" under the Employment Title of the ADA requires a case by
case determination.  Factors that must be considered whenever an employee
requests access to their employer's website include:

1.  The nature and net cost of the accommodation needed (ie website
re-design), taking into account the availability of tax credits and
deductions, and/or outside funding;
2.  The overall financial resources of the facility involved in the
provision of the accommodation; the number of persons employed at such
facility; the effect on expenses and resources;
3.  The overall financial resources of the employer; the overall size of the
business with respect to the number of its employees; the number, type and
location of its facilities;
4.  The type of operations of the employer, including the composition,
structure, and functions of the workforce; the geographic separateness,
administrative, or fiscal relationship of the facility in question to the
employer; and
5.  The impact of the accommodation on the operation of the facility,
including the impact on the ability of other employees to perform their
duties and the impact on the facility's ability to conduct business.

The weight given to each factor in determining undue hardship for an
employee accommodation will vary depending on the facts of the particular
situation. In the case of web site design for access, a strong argument can
be made that accessible web design will benefit not only this one employee,
but all employees with a disability requiring access.  In addition, the ADA
imposes an ongoing duty to remove barriers, so every web site revision is
subject to the consideration of coding for access.

In general, however, the determination is made by comparing the nature
and/or cost of the accommodation in relation to the employer's total
resources and operations.

Similarly, if the request for access to a web site is not coming from an
employee, but from a visitor to the website, and the entity is covered under
the ADA, then the determination of what will constitute an undue burden will
also be made on a case by case basis.  In determining whether or not the
request would result in an undue burden, factors for a Title III covered
entity include:

1.  The nature and cost of the action needed;
2.  The overall financial resources of the site involved in the action; the
number of persons employed; the effect on expenses and resources;
3.  The geographic separateness and the administrative or fiscal
relationship of the site in question to any parent corporation or entity;
4.  The overall financial resources of any parent corporate or entity; the
overall size of the parent corporation or entity with respect to the number
of its employees; or the number, type, and location of its facilities; and
5.  The type of operation(s) of any parent corporation or entity; including
the composition, structure and functions of the workforce of the parent
corporate or entity.

In my opinion, because of these factors, it will be in AOL's best interest
to settle.

Cynthia D. Waddell
Cynthia D. Waddell   
ADA Coordinator
City Manager Department
City of San Jose, CA USA
801 North First Street, Room 460
San Jose, CA  95110-1704
(408)971-0134 TTY
(408)277-3885 FAX

-----Original Message-----
From: Kynn Bartlett [mailto:kynn-hwg@idyllmtn.com]
Sent: Friday, November 19, 1999 11:11 AM
To: David Poehlman
Cc: Claude Sweet; WAI Interest Group Emailing List
Subject: Re: How Much Of A Problem Are Tables Used for Design?

At 10:49 AM 11/19/1999 , David Poehlman wrote:
>to make this brief as we've been asked to stay on topic.  my reference
>was of the fairness of people needing to do something <unfair> to
>achieve accessability.  I'm not saying that there should be tit for
>tat.  I'm saying that accessability is the goal and fairness or
>unfairness plays no part as I see it.

Sure it does.  "Undue burden", for example, is a principle at the 
core of most (all?) accessibility requirements.  Does doing this
require me to spend a lot of resources (time, money, personpower)
to achieve something that's only of a certain amount of value?

Theoretical case:

As a businessman, sure, I'd like to have my website reach everyone.
But if it costs me $10,000 to create the site, but would cost me
an extra $50,000 to make sure it's available to deaf users (because
I have multiple multimedia files that need synchronized captioning),
I'm not going to pay 500% more just so that a very small audience
(perhaps 1%) can access it.

Is it fair they can't see it?  No, not really.  But is it fair that
I have to pay five times as much because they're disabled?  No,
that's not fair either.  Our goal is to balance out the fairness
or lack thereof, and to make those kinds of determinations, we
need to see what the costs are and what the benefits are.  Asking
someone to expend a great "cost" for a small "benefit" can be very

Now, you and others have noticed that I go around saying "accessibility
is cheap and easy!"  And I believe that for the vast majority of the
cases out there, this is true.  Reliable use of ALT text would solve
50% of the existing accessibility hurdles, for example, and ALT text
is so mindnumbingly easy that even non-technical people I talk with
can instantly grasp the cost-benefit scenario.  It's a winner.

Other things are not so easy, or not so cheap.  It's my belief that
when something is -not- easy and cheap -- which is a way of saying
"the benefits do not justify the cost" -- that those should not be
required.  Recommended, perhaps, yes -- but not _required_.  If 
making my site (or business, or whatever) accessible by your standards
will cost me enough that I'd potentially go out of business, then you
are -not- going to see it happen, whether or not you have a "no
compromise, no excuses, accessibility NOW!" philosophy.

We need to work within the existing structures, and emphasize the
benefits of accessible web design -- while still realizing that many
things that are good and wonderful and enabling may be beyond our
grasp.  We need to choose carefully what battles we fight, because
this war isn't going to be fought in a day.  We have to realize that
sheer economics mean we can't get everything we want, even from those
people who support us the most.

Is that "fair"?  No.  But "fairness" is the poorest of accessibility
arguments anyway.  If it really worked, then we probably wouldn't 
need accessibility laws and guidelines now.

[Hopefully this has been on-topic enough; if not, my apologies.]

Kynn Bartlett                                    mailto:kynn@hwg.org
President, HTML Writers Guild                    http://www.hwg.org/
AWARE Center Director                          http://aware.hwg.org/
Received on Friday, 19 November 1999 15:31:18 UTC

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