Re: Boilerplate contract language for ADA

On Tue, Nov 16, 2004 at 02:42:34PM -0800, Karen Eft wrote:
> Scott,
> As has been pointed out, the e-Berkeley Policy has a
> section on accessibility. We used the phrase:
>
> all essential administrative material must, to the
> extent feasible, be made accessible to people with
> disabilities
>
> (http://itpolicy.berkeley.edu/e-Berkeley.policy.html#acce)

I don't think this language is strong enough. ADA is not an advisory
piece of legislation; we can't decide for ourselves whether it's
feasible to install a wheelchair ramp in a new building; we either do
it, or we're in violation of the law. We might argue that there is
some provision in ADA for delaying retrofit of existing
"constructions," but it is pretty clear that in new construction, we
have to be compliant. This must also apply to the Web.

> - a recent court case (Southwestern Airlines) actually
> seemed to set precedent that the ADA does NOT apply to
> websites:
> (http://news.com.com/Disabilities+Act+doesnt+cover+Web%2C+court+says/2100-1030_3-5384087.html?tag=nefd.top)

This case definitely does *not* set precedent that the ADA does not apply
to web sites. Among the language in that case:

   The plaintiffs claim that this limitation places Southwest.com in
   violation of Title III of the ADA, which requires privately
   operated places of public accommodation to be accessible to
   disabled individuals. Unfortunately, we are unable to reach the
   merits of this case, however, because none of the issues on appeal
   are properly before us. Accordingly, we are constrained to dismiss
   the appeal.

   ...

   However, we are unable to reach the merits of the plaintiffs claim
   because, simply put, they have presented this Court with a case
   that is wholly different from the one they brought to the district
   court. As we see it, the plaintiffs have abandoned the claim and
   argument they made before the district court, and in its place
   raised an entirely new theory on appeal -- one never presented to
   or considered by the trial court.

   ...

   [T]he law is by now well settled in this Circuit that a legal claim
   or argument that has not been briefed before the court is deemed
   abandoned and its merits will not be addressed.

In other words, the case was dismissed because the appeal was argued on
different grounds than the lower court case; essentially, the case was
thrown out because the plaintiff's lawyers were lame. And Southwest has
since improved their web site, so this particular suit will not be brought
again.

This decision sets no precedent; it is based on procedural errors made
by the plaintiffs, not on the merits of the case.

> - ADA Accessibility Guidelines are available from W3C:
> http://www.w3.org/TR/WCAG20/ -- however, these are just
> guidelines. To paraphrase an esteemed colleague who
> sent me an individual email on this topic:
>
> While we might urge vendors to adhere to W3C guidelines
> wherever possible, it may not be appropriate to force
> design choices in a contract negotiation before proper
> analysis can be done. It's during the analysis stage
> that developers and stakeholders should decide these
> issues. In many cases, it is acceptable to offer
> alternatives to using the web app -- such as a phone
> number to call for support. The focus of the law (ADA)
> seems to be on making sure that business can be done by
> those with disabilities -- not that we force all web
> applications to work for all types of handicaps.

It is true that the focus of the ADA is to allow those with
disabilities to "do business," and that there may be web sites for
which ADA compliance is not a legal mandate. Likewise, there may be
buildings on campus which do not have wheelchair ramps. However, we
would never consider constructing a new building with no wheelchair
ramps, nor should we consider constructing a new web site without
accessibility features.

As with physical buildings, the cost of retrofitting ADA compliance
onto an existing website is far greater than the cost of building it
in in the first place. And as with wheelchair ramps, accessibility
features in web sites provide benefits to all users, not just those
with disabilities.

It seems foolish in the extreme for us to argue that our web sites
might not need to be accessible. The campus recently settled a
multi-million dollar ADA compliance lawsuit related to the
hearing-impaired; let us not wait until we are sued again to do the
right thing.

> That said, I certainly feel that the campus needs to devote
> some resources to creating well-organized recommendations
> and educational materials in the "accessibility of online
> resources". Perhaps we could identify a person or group
> of persons with the time and expertise to work on this.

I would not consider myself an expert, but I would be willing to work
on it.

> >I'm looking for some boilerplate language that I can drop into a
> >contract for web development. Specifically, I would like to ensure
> >that the website will comply with statutory requirements and UC
> >guidelines for the Americans with Disabilities Act (ADA).
> >
> >A pointer to a document or a reply with the actual phrases would be
> >ideal. Any help would be greatly appreciated.

<http://www.section508.gov/index.cfm?FuseAction=Content&ID=12#Web>

-- 
Tom Holub (tom_holub@LS.Berkeley.EDU, 510-642-9069)
College of Letters & Science
249 Campbell Hall
------------------------------------------------------------------------
The following was automatically added to this message by the list server:
For information about Micronet, including subscribing to
or unsubscribing from its mailing list and finding out
about upcoming meetings, please visit the Micronet Web site:
<http://micronet.berkeley.edu/>.