Special Article
Progress on Accessibility In The Built Environment
By
John Kemp [view bio]
Disability rights advocate and principal at Powers, Pyle, Sutter and Verville, P.C.
Prior to the passage of the Americans with Disabilities Act (ADA) in 1990, individuals with physical disabilities often had difficulty accessing many of the places we take for granted- office buildings, retail stores, medical facilities, etc. However, the ADA took a step towards solving this problem with the establishment of a “time more certain” after which more access to the built environment was assured, and future construction was guided by federal rules, permitting people with mobility-related disabilities to have physical access to jobs and the marketplace.
Many state and local building codes preceded, and some to this day exceed, the requirements of the ADA Accessibility Guidelines (ADAAG), issued by the Access Board, a federal agency. Given these efforts and guidelines, it is important to ask: To what extent do ADA's covered entities conduct systemic assessments of physical access to their facilities? People with disabilities come in all sizes, shapes and mobilities, and they're likely to come seeking a job or a product or services at one of your facilities or stores – or online (see infra) at any time. Your company's behaviors in this area are a core component to the “DDQ”- Disability Diversity Quotient- we discussed in last quarter's newsletter, and the following questions are meant to assist you in “scoring” your DDQ level. For purposes of calculating your DDQ, please answer the following questions using a scale of 1 (low) to 10 (high).
Does your corporation periodically conduct a comprehensive physical accessibility review of all facilities throughout your company- at all locations, whether owned or leased?
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Does your corporation have written policies and/or practices that assure that all vendors, from architects to industrial designers to interior decorators to office suppliers are obligated to follow and support your ADA compliancy by provided goods and services to your corporation?
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There is sometimes a fine line between what is a form of ‘reasonable accommodation' to the known physical, mental and/or emotional impairments of a qualified individual with a disability and what is a capital expenditure to achieve accessibility code/guideline compliance. For example, assuming an applicant uses a wheelchair for mobility due to a spinal cord injury, making the HR office accessible by installing a permanent ramp is a capital expenditure; making another location's (such as the building where the employee will work) entryways accessible by installing a ramp would likely be regarded as a specific accommodation to the employee's known physical limitations of transcending stairs.
Do your corporation's diversity policies address physical general accessibility and accommodations to address a disabled individual's limitations?
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Does your HR and/or supervisory annual training address the importance and value of achieving the highest, yet most cost-efficient, level of physical access for a wide range of job applicants, employees and customers (seniors and others who may have limited or declining physical, sensory and cognitive disabilities for which good accessibility includes excellent signage/way finding as well as ramps, etc)?
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EEOC permits only a very limited exception for bona fide occupational qualifications (BFOQ). Thus, job descriptions that claim to require exceptional physical activities for them to be performed safely are highly suspect. For example, where full accessibility on an oil tanker might be difficult to affordably achieve, it would be permissible for emergency personnel working on the grounds of the oil storage tank farms to be required to climb a tall ladder attached to the tank within a specified time period, even if the employee may never actually have to do this (if there is no emergency).
Does your corporation coordinate its policies involving, both specific job demands and the physical environment of all jobs so as to minimize the need to claim a BFOQ defense in a political disability discrimination charge?
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Does your corporation systematically include “universal design” into its physical environments that job applicants and employers as well as customer use?
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As most sophisticated business stakeholders know, the race to keep up with the rapid pace of technology presents challenges many of us have never fathomed. In particular, the emergence of the Internet as a staple item in our daily routine has resulted in fundamental shifts in the habits of our personal and professional lives. For businesses, these technological advancements demand changes in the way we interact with a variety of audiences, whether they be consumers, employees or colleagues. Initially, the Internet marketplace was focused on consumer retail development, with traditional retailers retrofitting their business models to rely more heavily on the virtual marketplace and increasing numbers of online customers. Indeed, it was not so long ago that the idea of an “Amazon.com” would have been an outrageous proposal. And yet today, the use on an online-only retailer is a commonplace occurrence that rarely raises a question.
For the most part, businesses have been successful in responding to technological shifts through the expansion of services in the virtual Internet marketplace. Recently, we have seen that market expand into the service industry as well, with individuals relying more and more heavily on the Internet as a means of matching themselves with service providers and vendors. And yet, despite the dynamic and fantastic benefits we have seen from this new business opportunity, one must wonder whether the frantic pace at which we move causes us to unwittingly leave some populations in our “technological dust”. How does a business ensure that as it moves forward, its new market “vehicles” have seats for the diversity of groups that comprise its target audience? For businesses, the issue of ensuring that all segments of the population are able to ride along on the wave of technological advancement is a multi-million dollar question. As such, stakeholders must keep in mind the importance of all consumers when they developing a new infrastructure for today's market and the market of the future.
One of the groups most likely to get left behind the fast moving technology train are individuals who are unable to access the online marketplace through traditional web-based products. Too often we take for granted the ability of a person to just jump online and “point and click” there way through a service or product without considering those who may have sensory, cognitive or physical disabilities. However, these websites and online services can easily be made accessible through minor alterations, making it unnecessary for businesses to lose out on opportunities to communicate and serve these individuals with disabilities. This lack of accessibility is frequently due to a failure to understand the relative ease and importance of making our new technologies accessible to all segments of the population. So, this month, as you ponder your “Disability Diversity Quotient”, ask yourself: “Is my business is doing all that it can to ensure that its Internet resources are available to individuals with disabilities?”
Looking more closely at providing accessible technologies, there are probably a number of questions that pop into your mind. Isn't that just going to cost my business more money? Why should I make a special effort to include this relatively small pool of individuals? What am I really missing out on if I choose not to include them? All of these are very real and relevant questions, and while I cannot answer them for you, please allow me to share some information to assist you in reaching your own conclusions.
First and foremost, a business should take into account any legal obligations it may have to offer its online services in an accessible format. Under the current statutory requirements of the Americans with Disabilities Act and the Rehabilitation Act, many business owners are familiar with issues related to accommodation for employees and customers who may need assistance due to a disability. In fact, over time, these obligations have become relatively clear. But as the marketplace evolves and additional populations emerge, how can you determine your obligations?
From a purely legal perspective, the issue of new marketplaces and practices has raised fascinating questions. For instance, as businesses move to a model more heavily dependent on web-based and online communication, should we consider the Internet a place of public accommodation? The American court system has only recently begun to tackle these challenging issues, and it is unclear where the law will ultimately end up.
In a recent federal court case in Florida, Access Now v. Southwest , a complaint was filed by a visually impaired individual against Southwest Airlines because the virtual ticket purchasing mechanism on its website was not accessible to people who are blind. The individual argued that because Southwest offered its goods and services virtually through the Internet, its website ultimately functioned as a place of public accommodation, and the company's failure to employ available technologies to make it accessible to visually impaired individuals was a form of discrimination under the Americans with Disabilities Act. Ultimately, the court in this case failed to find that a website could qualify as a place of public accommodation under the ADA because the statute was aimed at physical facilities. However, other courts have reached contrary conclusions. In Carparts Distribution Center v. Automotive Wholesaler's Association , a federal Court of Appeals recently found that the protections of the ADA are not limited to physical structures, but rather that the language of the statute is ambiguous and leaves open the possibility of non-traditional places of public accommodation. According to the court , “ i t 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." Such a decision could have direct implications for a court's treatment of an Internet marketplace under the ADA, and we are likely to see an escalation of these questions being litigated in the near future.
Aside from the purely legal requirements however, are the practical (and frankly, more appealing) benefits and opportunities that a business may miss out on if it chooses not to offer its Internet resources in an accessible fashion. Certainly you can envision the loss of a customer who chooses not to buy your product or use your service because they were unable to utilize the convenience of your website. But what about other groups which may not immediately jump out at you? For instance, consider a prospective employee who is unable to utilize the services of a site such as Monster.com or unable to retrieve the job application you posted on your website? Sure you have publicly posted the position and of course you would never intentionally discriminate against any applicant, but have you employed technologies to make the information available to individuals who may have atypical visual or physical abilities? You may have just missed out on the perfect applicant for your position because he or she was unable to use the online application.
So I've convinced you of the benefits and importance of ensuring that your journey into new technologies must be accessible to individuals with disabilities as well as the general population. What can you do to make your web-based offerings more accessible and, in turn, maximize your DDQ? Does your website meet “Bobby approved standards”? Have you tested it with employees or customers with disabilities? Is your corporation's website readable through standard screen readers?
As a fellow businessman, I am well aware of the number of challenges that you face in today's emerging marketplace. Likewise, as an individual with a disability, I am also aware of the critical importance of making that marketplace accessible to those who may need accommodation and assistance. For those of you who are already ensuring the accessibility of your Internet resources, I hope these thoughts have reconfirmed the multitude of benefits shared by everyone because of your efforts. For those of you just starting the accessibility journey, I hope I have provided you with some thought-provoking and useful ideas on how to launch your efforts. It is truly by working together and ensuring the participation of all individuals that we can collectively enjoy the promise of emerging technologies.
John D. Kemp is a long-time disability rights advocate and principal at Powers, Pyle, Sutter and Verville, P.C. Please direct questions for John to info@disability-marketing.com.