Preparing for the Americans with Disabilities Act

In 1990, Congress passed the Americans with Disabilities Act "to establish a clear and comprehensive prohibition of discrimination on the basis of disability." Over the past decade, courts have sought to interpret the legislation's requirements, often--though not always--clarifying what is or isn't a disability, and what does or doesn't constitute the sort of reasonable accommodation Congress had on its collective mind.

One thing not in doubt is which companies must comply with the act: If your organization employs 15 or more people, ADA applies to you. Although some states, notably California, have their own statutes, rules and regulations concerning employees with disabilities, ADA provides plenty of incentive for IT to work with employees who fall within the legal definition of "disabled."

Why focus on ADA now? For one thing, nearly 15 years of court decisions have provided enough case law to guide IT. Second, a preoccupation with homeland security, GLBA (the Gramm-Leach-Bliley Act), HIPAA (the Health Insurance Portability and Accountability Act) and SOX (the Sarbanes-Oxley Act of 2002) has relegated ADA to the back burner for the past couple of years. That means most ADA compliance has been on a reactive basis--hardly a recipe for cost efficiency and technology standardization. Finally, forward-thinking companies are looking to beat the numbers: As the working population ages and baby boomers get ready to retire in droves, some experts predict profound implications for the U.S. work force (see "By the Numbers," below).

More than ever, companies need the flexibility to hire the best-qualified people. Your role is to incorporate ADA compliance into basic implementation and deployment decisions so modifications for legally disabled employees don't compromise security or functionality. For example, it wouldn't be a good idea to let any employees, disabled or otherwise, work from home before a suitable remote-access framework is in place. Nor would it be prudent to install hardware that circumvents specific authentication methods--for instance, a keyboard lacking a token reader, or a predictive-typing system that stores and completes passwords.

ADA in a Nutshell

Here's what you need to know about the law:

• Individuals qualify as disabled under ADA if they have a physical or mental impairment substantially limiting one or more major life activities, have a record of such an impairment or are regarded as having such an impairment. Major life activities include walking, seeing, hearing, speaking, breathing, learning, working, sitting, lifting, standing, reaching and caring for oneself.
• Protection from discrimination requires the removal of those barriers presented by the disability. Simply put, ADA attempts to level the playing field for people with disabilities--nothing more and nothing less. Like most state and local laws, ADA does not provide for affirmative action.
• In general, an entity covered by the act must make reasonable accommodations for an employee's disabilities, so long as the employee can perform the "essential functions" of the job. Typically, essential functions are those tasks that must be accomplished for the job to be useful to the employer. The focus is on the end result, not the physical means of accomplishing the task.
• An employer needn't provide accommodations that would cause it undue hardship.
• The employer's duty to undertake an analysis of possible accommodations is triggered once it has notice of an employee's disability.
• The employer must engage in ongoing dialogue with the employee to ensure that the accommodation remains effective. This "interactive process" is usually handled by HR, but if IT doesn't participate, the process might overlook many potential accommodations.
• If the interactive process identifies more than one possible accommodation, the choice rests with the employer, not the employee. The employer is free to choose the accommodation it deems the least expensive or the easiest to implement.

In the IT context, reasonable accommodations usually address accessibility to computer systems. Many such accommodations can be made using facilities built into common OSs or applications, or through minor changes in standard-issue monitors or keyboards. Other changes, however, require significant modifications to applications or infrastructure. (For a list of products designed to accommodate employees' special needs, see "Products for Accommodation," right)

Products for Accomodation Click to Enlarge

Under ADA, the employer will almost certainly have to provide some computing modifications. With the advent of inexpensive--sometimes even free--applications for voice recognition, text reading and screen magnification, it's difficult to imagine how a business can successfully argue that these accommodations amount to an undue burden or hardship.

On the other hand, disabled IT employees won't necessarily get everything they want. For example, in Ceglarek vs. John Crane Inc., the U.S. Court of Appeals for the Seventh Circuit held that text-enlarging Zoomtext software, together with a copier capable of enlarging documents, constituted a reasonable accommodation for an employee's visual impairment, even though the company had failed to honor the employee's request for a Visualtek machine that captures and enlarges images on-screen.

ADA isn't the only federal legislation that makes demands on IT. A 1998 amendment to the Workforce Rehabilitation Act of 1973, known as Section 508, guarantees disabled individuals equal access to information technology the federal government has developed or bought directly. Even if your organization isn't bound by its provisions, Section 508 can better acquaint you with accessibility issues.

To help covered organizations comply with Section 508, the Electronic and Information Technology Access Advisory Committee proposed a set of accessibility standards covering a broad range of technologies, including Web pages, operating systems and adaptive-input products. The proposal became a final rule on Dec. 21, 2000.

The panel's standards can give you a head start on complying with similar federal provisions, including ADA. For more information, see "Guidelines for Accessible Web Sites," at right.

Choices, Choices

Many accessibility features are built into operating systems. In Windows XP Pro, for example, there are facilities for maintaining the effect of shift, alternate and control keys; expanding the size of screen text; and modifying the shape, size and input speed of the cursor. Microsoft has also provided speech-to-text capabilities in the OS, though these haven't entirely eliminated the need for manually editing the entered text.

On the other side of the data question are products like Freedom Scientific's Jaws, Dolphin's Hal and GW Micro's WindowEyes, which can take a text or word-processing document and synthesize a voice stream to "read" it to the user. Those with limited vision and facility with Braille can take advantage of consistently refreshable Braille displays from vendors such as Alva Access and Freedom Scientific.

Some users require text documents or books to be scanned and displayed in a large font size or read to them through a voice synthesizer. Freedom Scientific's OpenBook software offers OCT capabilities. For mobile users, Freedom Scientific's Braille Note Taker is well worth considering, as are Pulse Data's Braille Note and VoiceNote.

For those unable to manipulate standard keyboards and pointing devices, alternate entry systems include voice recognition, sip-puff switches and cameras that track eye movement. While installations often must be highly customized to fit users' special needs, application and hardware-integration frameworks, such as QualiWorld from EVAS, offer a single programming interface with which to build controls for personal computers, home control systems and mobility devices.

As employees age, IT departments will likely encounter more workers with hearing problems. Accommodations may include amplified phones, ringer-alternate signaling devices, and even voice alternatives like TTY devices and voice carry-over phones, in which the user speaks but the caller's voice is converted to screen text.

There are also adaptive products for employees with learning disabilities. Among these are devices that read typed text back to the user through voice synthesis so typing mistakes can be recognized, predictive typing tools and contextual-assistance systems that provide specific help for individual disabilities.

The price of implementing accessibility technology is difficult to pin down. The average cost of accommodating a disabled worker is $500, the U.S. Department of Education reported in March. Copies of ScanSoft's Dragon Naturally Speaking software can be found on the Web for as little as $15 per copy; IBM's ViaVoice voice-recognition software lists for $179.95 per user.

In addition to the cost of licenses for specific accessibility applications, organizations often will incur expenses to redesign or retrofit existing Web sites and/or infrastructure with accessibility features. Many government agencies, for example, are simplifying their sites to reduce visual confusion, adding audio or closed-captioning options to their content, and redesigning pages to reduce keystrokes. The cost of these efforts varies, depending on the extent of the changes and the accessibility-readiness of the original site design.

"Given the costs of accommodating the new homeland-security guidelines, a lot of the government agencies that are dealing with Section 508 compliance are stressed," says Sara Basson, director of accessibility services for IBM Global Services, which assists organizations in implementing accessibility technology. "But they also see that the benefits are strong, and that once you've designed for accessibility, it's better for the whole organization--not just users, but IT as well."

The Cost of Noncompliance

Organizations must take ADA and other antidiscrimination laws seriously because under our system of litigation, the defendant is usually required to pay its own way. So even if your business is successful in defending against an ADA lawsuit, it could easily owe $50,000 or more in attorney's fees. And IT must take notice because you're likely to be on the hot seat producing documents, answering written questions, preparing for deposition and trial testimony, and otherwise being unproductive in the job the business hired you to do.

f your business loses its case, it will be responsible not only for its own legal fees, but also for those of the complainant. In addition, it will have to pay the cost of the accommodation. Depending on the particular case, it may even have to ante up for lost wages, emotional distress damages and/or a punitive award. In most instances, the cost of providing the accommodation up front is much less than the cost and bad publicity associated with a disability discrimination case.

Investing in accessibility technology is smart, even for organizations that don't do much government business. To begin with, the population of potentially affected end users is huge. The National Organization on Disability estimates there are 54 million disabled people in the United States--roughly 20 percent of the country's employable population. With numbers like these, it's inevitable that most organizations--and their IT departments--will need to accommodate disabled workers to hire the best people.

For companies that interact with customers online, accessibility represents a business opportunity as well. According to the President's Committee on Employment of People with Disabilities, the disabled population of the United States has a disposable income of more than $176 billion--more than twice that of teenagers.

"If you're doing business on the Web, accessibility goes beyond government regulations or even just doing the right thing," says IBM Global Services' Basson. "It's just good business."

Even more important, the definition of the "disabled" market is changing. In the past, IT accessibility initiatives have focused on accommodating users with profound disabilities, such as the blind, the deaf and those without use of one or more limbs. Today, IT organizations, and the vendors that support them, are discovering an even more common problem: an aging user population that suddenly finds itself squinting at the screen, maxing out the volume controls and fighting against wrist and hand pain brought on by too much time at the keyboard. Roughly 25 percent of computer users have some sort of visual impairment, either mild or severe, that affects their ability to see or process information viewed on-screen. Nearly as many have dexterity problems that affect keyboard operation, and about 20 percent have a hearing impairment, according to Forrester Research.

All told, some 57 percent of computer users in the Forrester survey characterized themselves as "likely" or "very likely" to benefit from the use of accessibility technology. And as the population ages, the wave will continue to crest: By 2020, 20 percent of U.S. workers will be older than 55, up 7 percent from 2000. And as a growing number of employees work past the traditional retirement age of 65, IT departments will be supporting a larger group of users with impairments.

With the benefits becoming increasingly obvious, the question for many IT professionals is not whether to implement accessibility technology, but which to implement first. While that decision will often be based on the needs of individual employees, building accessibility into information systems from the get-go will put IT pros ahead of the accessibility technology curve.

Curtis Franklin Jr. is a senior technology editor for Network Computing and Secure Enterprise.

Tim Wilson is editor/business technology for Network Computing.

Martin S. Ebel, a partner at Boston law firm Lawson & Weitzen, specializes in employment and public-accommodation lawsuit defense.

For many organizations, the need to plan for adaptive technologies and Web site accessibility has been lost in the shuffle of post-9/11 security, GLBA (the Gramm-Leach-Bliley Act), HIPAA (the Health Insurance Portability and Accountability Act) and SOX (the Sarbanes-Oxley Act of 2002). Meanwhile, the body of case law to support ADA (the Americans With Disabilities Act) has been growing; and standards have been put in place to support Section 508 of the Workforce Rehabilitation Act of 1973, which requires that Web sites and other information technology developed by vendors that deal with the federal government be accessible to people with disabilities.

While most large organizations have legal and HR personnel trained to ensure compliance with federal regulations, IT has a vital role to play, especially as accessibility technologies become more advanced. The time to plan how you'll enable a disabled or aging employee to contribute to the business is before an HR rep comes knocking frantically on your door. We discuss ADA requirements and examine technologies that can help your organization fulfill its legal obligations.

The World Wide Web Consortium (W3C) has issued Web Content Accessibility Guidelines (www.w3.org/TR/WCAG10/) to help Web designers make their pages accessible to users with hearing or visual impairments. Here are some highlights:

1. Provide equivalent alternatives to auditory and visual content. In practice, this involves providing text alternatives to graphical or rich-media content. The flip side is providing nontext alternatives--illustrations, for example--for those who have reading difficulties.

2. Don't rely on color alone. It's amazing how many people suffer from some sort of color blindness. Make sure that your pages can be understood without seeing words in different colors.

3. Use markup and style sheets, and do so properly. Accessibility software depends on markup and style sheet standards and conventions. Use them.

4. Clarify natural language usage. By properly identifying the natural language of the site (and when that language changes), developers assist text-to-speech engines.

5. Create tables that transform gracefully. Use tables for tabular information--not overall page layout. This is important for many screen-reader packages.

6. Be sure that pages featuring new technologies transform effectively. Understand what happens when someone visits your page using an older or less common browser.

7. Provide user control of time-sensitive content changes. If something scrolls, blinks or moves, make sure a user can stop or pause the motion.

8. Ensure direct accessibility of embedded user interfaces. If an embedded object has its own interface, it must comply with device-independent standards.

9. Design for device-independence. Is a mouse click the only way to trigger an event? That may be difficult for someone using a keyboard or keyboard/voice synthesize interface.

10. Use interim tools. It may take time for adaptive products to catch up with the latest Web interface developments--make sure your site works with the older technologies.

11. Use W3C technologies and guidelines. Adaptive software and hardware developers build to the standards, and so should you.

12. Provide context and orientation information. Grouping items by context can be of huge assistance to those with cognitive difficulties--and, frankly, to the rest of us, too.

13. Provide clear navigation mechanisms. Keep these mechanisms obvious and consistent.

14. Ensure that documents are clear and simple. Just because you can build a Web page that's stylish, doesn't mean you should. If it's hard to see and understand, it's not effective.