BEYOND ALL OR NOTHING IN IT DISABILITY RIGHTS LEGISLATION

Presenter #1
Ken Nakata
BayFirst Solutions LLC
6856 Eastern Ave NW

Washington
DC
20012
USA
Day Phone: 2063302038
Fax: (202) 541-1160
Email: ken.nakata@bayfirst.com

Disability laws hold private companies to “all or nothing” defenses, like “readily achievable” and “undue burden.”  A different approach is needed to foster IT accessibility.

Section 255 of the Telecommunications Act of 1996 is often criticized because it holds companies to the relatively low “readily achievable” defense for accessibility. The only other defense that looks to a similar set of factors is the extremely difficult “undue burden” defense.

This paper compares the undue burden and readily achievable defenses--- and proposes that neither one is appropriate for legislation aimed directly at the IT industry because IT standards are not (and should not) be like building codes.  Using such an “all or nothing” approach only alienates the disability and IT communities from each other while history has shown that our best innovations and greatest improvements in accessibility come from letting industry innovate cooperatively with persons with disabilities.

The Undue Burden Defense

The undue burden defense requires a careful case-by-case determination of whether an action imposes a significant difficulty or expense when measured against several factors, including all of the financial resources of a company.  It is an extremely difficult burden to meet.

When Congress passed the Rehabilitation Act of 1973, Section 504 included no reference to the undue burden defense.  One year later, the Supreme Court decided Southeastern Community College v. Davis,(1) which introduced the “undue hardship” defense and held that the Rehabilitation Act did not require a substantial modification to the facilities, equipment, or program of a federal fund recipient.  Subsequent Section 504 regulations included the undue burden defense and made clear that it was an extremely difficult threshold(2) that required looking at all of the financial resources available to a program or activity.

Congress was aware of Southeastern College and these regulations when it passed the Americans with Disabilities Act in 1990.  Congress included the undue burden defense in Title III, which was further extended in the Department of Justice Title III regulations.  The Department has made clear that all of the financial resources of a place of public accommodation need to be considered in determining whether an undue burden was imposed and that places of public accommodation had to show that a request was “substantial” in light of the overall financial budget of the company.

Federal courts have placed the burden on proof on defendants to show that the requested accommodations would substantially change their business or would be impossible to perform.  In some cases, the courts have hinted that even expenses of hundreds of millions of dollars may be required as long as they are not significantly greater than available capital.(3)

The Readily Achievable Defense

Although the term “readily achievable” (in both 255 and Title III) looked at the same factors as undue burden, it had a much lower threshold of “easily accomplishable and able to be carried out without much difficulty or expense.”

Federal cases prove that this defense has a very low threshold, where it could be done with “minimal cost and effort.”  Courts have placed the burden of proof on the plaintiff.  Thus, for instance, rough estimates are not sufficient.  Thus, while both the readily achievable and undue burden defenses look to the same underlying set of factors, they are radically different in application.

IT Standards are Not Like Building Codes

In the bricks-and-mortar world, an all or nothing approach makes more sense.  Thus, Title III of the ADA is inflexible insofar as it holds private businesses to very exacting requirements when they design or build new facilities.  By contrast, private businesses are required to remove barriers in existing facilities only where doing so is readily achievable.  In large measure, this difference was intended to relieve existing places of public accommodation from having to endure the difficulty, cost, and inconvenience of retrofitting their facilities to provide accessibility.  These architectural standards include extremely detailed architectural requirements that specify, for instance, exactly how wide a doorway must be or the number of inches above the floor that a grab must be mounted.  These standards are also well-understood by the community of architects and contractors using them.

Such level of detail is neither available nor desirable for IT standards.  These industries move very quickly and prescriptive standards like the ADA Accessibility Standards would only serve to impede technological development.  Instead, successful accessibility standards in the IT industry are much more “forward looking.”  Holding IT companies to IT standards and the undue burden defense thus produces one of two possible outcomes--- both of which are counterproductive to people with disabilities.  First, if the regulatory standards are “forward looking” like the current Section 508 or 255 standards, then companies forced to meet the undue burden defense would have to show that meeting the standards was technically impossible or would create an enormous impact on the overall financial resources of the company.  This discourages IT companies from innovating and developing new technologies that have any impact on people with disabilities.

History demonstrates that technologies inaccessible to one group of users with disabilities may provide enormous benefits for other users with other disabilities--- and holding manufacturers to the undue burden defense from the outset may discourage or delay their development altogether.  For instance, RIM and Blackberry devices help integrate many people with hearing impairments despite being currently inaccessible to people who are blind.  Similarly, portable GPS devices now give many people with visual impairments increased freedom even though these devices were far from accessible when originally developed.  Although it is extremely important to make these technologies accessible to all people with disabilities, an undue burden defense would have discouraged their development altogether because it would have required companies to prove that they could not have made these products accessible without facing bankruptcy.  

Of course, we all want IT companies to innovate, but what is wrong with holding companies to a very high threshold (e.g. undue burden) for even a basic level of accessibility?  Unfortunately, IT standards are simply not amenable to basic prescriptive requirements like building codes in the bricks-and-mortar world.  Unlike the physical world, even the basic mode of accessing information technology changes.  For instance, TTY devices are rapidly losing popularity yet our current standards remain mired in the requirement telecom devices to transmit Baudot tones while not encouraging accessibility in newer technologies like video remote interpreting.  For visually disabled users, we focus on basic requirements like keyboard accessibility while the underlying means by which software companies provide even this level of accessibility may likely change radically within the next few years.

Section 255 may have not created as many benefits as many of us desire. But, using tough defenses may not produce better accessibility. Instead, we need to consider alternatives to the “all or nothing” approach.  For instance, laws like Section 508 of the Rehabilitation Act have seen greater gains over a much shorter history because, instead of creating liability, it creates real market incentives for companies to reach higher and higher levels of accessibility.  With the populations of major industrialized nations rapidly aging, foreign countries have become interested in IT and telecommunications accessibility and have universally used the Section 508 model to foster its development.

Beyond All or Nothing

This paper seeks to start a cooperative dialog between the IT and disability communities and identify solutions beyond the “all or nothing” approach.  Some alternatives--- which all deserve our thoughtful attention--- include the following:

* Process-Based Requirements.  Instead of setting standards for the actual technology, this alternative looks to process for developing the technology.  Should our laws instead require manufacturers to seek the involvement of persons with disabilities during the development of a product?  If so, at what stages and what disabilities should be included?

* Creating Different Market Incentives.  Section 508 has succeeded because it creates market incentives for companies to develop the most accessible products possible by using the huge buying power of the federal government.  How can we create other market incentives for manufacturers to make products more accessible?  Or, should our laws provide tax incentives for developing accessible products?

* More Precise “In the Middle” Thresholds.  Both the readily achievable and undue burden defenses suffer from their imprecise thresholds.  Should our laws instead require manufacturers to demonstrate that they have devoted a specific amount of funds to ensuring accessibility?

The author believes that the first alternative--- using process-based requirements--- may hold the greatest untapped promise.  IT companies can understand the needs of users with disabilities best if they actively involve people with disabilities in the development process and seek their input.  On the other hand, even where companies make tremendous efforts at improving accessibility, those efforts may go unnoticed without some “transparency” and accountability in the process itself.  In general, process-based requirements may foster exactly the cooperative environment needed to create the most accessible products possible.

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