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Web accessibility litigation: it’s not what we want

Filed in: accessibility, Web, Mon, Aug 23 2004 17:03 PT

Accessibility by litigation: it’s not just a British-and-Australian thing anymore. New York Attorney General Eliot Spitzer settled on Thursday with Ramada and Priceline, setting out rules based on the W3C Web Content Accessibility Guidelines 1.0 to make their sites accessible to “the blind and visually impaired.” (<sarcasm>Because they’re the only ones who really matter, right?</sarcasm>) For people in the field of accessibility, this is a victory; users of the updated sites, though, may find the war is far from over. What follows is a long, long explanation of what just happened, what it means, and why Web designers need to wake up quickly before they get owned.

How we got here

Here is a brief history of Web accessibility policy. (I am not a lawyer.)

There are two dominant policy documents in the field of Web accessibility: WCAG 1.0 and Section 508 of the Rehabilitation Act of 1974. Section 508 relates to Federal agencies and their purchasing rules; it is more objective (though not entirely: I sat on one “objective measures” task force for 508) and more limited in scope than WCAG 1.0. Some states have used 508 for their accessibility guidelines, some have used WCAG 1.0, some have used a hybrid, and some have no guidelines at all. What each state’s guidelines apply to also varies widely.

Additionally, the Americans with Disabilities Act of 1990 (ADA) requires services provided “by places of public accommodation” to be accessible, though what that means for the Web is the subject of much litigation. The preliminary ruling in Access Now v. Southwest Airlines was that the ADA does not apply to the Web, while the ruling Martin v. MARTA was that it does.

In the Ramada and Priceline settlements, Spitzer comes down on the does side, citing ADA as the reason the companies have to comply. This does little, as far as I’m aware, to advance that decision, since no judge has ruled on it, but it does show that companies are likely to see more of these cases.

If ADA does in fact apply to the Web, the next question needs to be asked: by what standard do we define accessibility vis-à-vis ADA? At some point, this question will need to be answered, by the court system, Congress, or both.

In these cases, the answer was WCAG 1.0. Or some subset thereof, according to the filing. Both Ramada and Priceline agreed to subsets of double-A conformance to WCAG, but each company won concessions which could have a negative effect on the actual accessibility of the updated sites. I’ve compiled a list:

Priceline

Having read the settlement, I have to say that Priceline’s culture of haggling served them well. They avoid having to conform to three Priority 1 checkpoints, along with some twenty-one Priority 2 checkpoints. This is what Priceline doesn’t have to do. (WCAG checkpoints as listed are summaries of the original checkpoint text.)

1.3: Audio descriptions of multimedia (Priority 1)
1.4: Synchronized alternatives in multimedia (Priority 1)
Priceline says they don’t use multimedia now, but apparently if they do in the future, nothing in this settlement is to stop them from doing it inaccessibly.
2.2 Contrast between background and foreground (Priority 2 for images)
A head-scratcher: what’s so hard about decent contrast?
3.2 Valid documents.
3.3 Style sheets for layout and presentation.
3.6 Mark up lists and list items properly.
3.7 Mark up quotations.
5.4 If a table is used for layout, do not use any structural markup for the purpose of visual formatting.
5.3 Do not use tables for layout unless the table makes sense when linearized.
7.2 Avoid causing content to blink
11.1 Use W3C technologies when supported and appropriate
11.2 Avoid deprecated features of W3C technologies.
Priceline steadfastly refuses to comply with two requirements of WCAG conformance: they will not make their site valid, and they will not use style sheets for presentation. Lots of this appear to be tied to their 1997-esque design: they use tables for layout extensively, loads of FONT tags, the antediluvian CENTER, and precisely three lines of CSS total on their homepage. Would it take some time to bring their homepage into this decade? Yep. Would it kill them? No. Does this have an impact on overall accessibility? You bet. Most of the resulting accessibility problems in the final product will hinge on Priceline’s unwillingness to produce standards-compliant, semantic code.
6.4 Device-independent event handlers
6.5 Ensure that dynamic content is accessible or provide an alternative presentation or page.
8.1 Directly accessible applets and objects (Priority 1 for important info, Priority 2 otherwise)
9.2 Device-independent interface widgets
9.3 Logical, device-independent event handlers
And here’s where most of the rest of the problems will come from. No applets, Flash movies, or other media will be made directly accessible. It appears Priceline will be relying heavily on WCAG’s major loophole, Checkpoint 11.4 (if you can’t do it after your best effort, make a separate, accessible version), which is tragic. As I’ve said before in On “separate but equal” design, this is segregation, and it’s almost always the wrong answer.
7.4 Do not create periodically auto-refreshing pages.
10.1 No popups without informing the user
These are both well-known accessibility problems that Priceline does not attempt to resolve. Somehow, in both Priceline’s and Ramada’s settlements, the checkpoint preventing popups has somehow turned into a requirement of a “Close Window” link on the popup after it’s been fired, which does nothing for the actual problem of stealing the user’s focus without permission.
12.2 Describe frame relationships
There’s no reason not to agree to this, that I can think of. Especially since Priceline says it doesn’t use frames.
12.3 Divide large blocks of information where appropriate.
This deals with simple things, like grouping related controls using the FIELDSET element. Again, not hard, no real reason not to do it.
12.4 Associate labels with controls.
The LABEL element is laughably simple to implement.
13.3 Site map
Another easy one.
13.4 Consistent navigation
This requires navigation systems to operate similarly across pages. Failing to do this means that users, including those using screen readers, cannot rely on links doing what they say they do.

Ramada

2.2 Contrast between background and foreground (Priority 2 for images)
Hmm. What’s so hard about this that both Ramada and Priceline flagged it?
3.3 Style sheets for layout and presentation.
7.3 Avoid movement in pages
11.1 Use W3C technologies when supported and appropriate
11.2 Avoid deprecated features of W3C technologies.
I think Ramada wants to use the FONT tag. And MARQUEE, too.
3.4 Relative units in CSS
In an effort to preserve their extensively pixel-sized site, Ramada has hard-coded into its settlement a workaround that will please nobody: they will create an alternate style sheet, put it in a “Change Font Size” link, and — get this — instruct users with disabilities to download it and set it as their user style sheet. What, they couldn’t even let them set a cookie to request usable fonts? To me, that would be the bare minimum to conform to this requirement.

Even if you’re the type who likes to argue that “px” is a relative unit, the fact is that Internet Explorer renders it inaccessibly, and that means that for the foreseeable future, it’s broken. If your designers can’t design around that simple constraint, you need to get new ones.

10.1 No popups without informing the user
Shock of shocks: Ramada’s site uses them now. Still no recognition that it’s an accessibility problem.
13.1 Clearly identify the target of each link.
Another curious one. This was intended to prevent links that say “click here”, which — ooh! look! — Ramada’s site has in spades. Why is this a problem? An exercise: pull up a page like Ramada’s in a screen reader. Listen to it say “click here. click here. click here. click here.” in links mode. Shoot yourself before the pain gets unbearable.
14.1 Clear and simple language (Priority 1)
Here’s one that Priceline didn’t bother with, but Ramada takes offense to. And it’s not a hard one, per se. It’s just subjective, and to marketing groups, it ranks somewhere between garlic and a silver bullet. Nobody wants to be told you can’t communicate in a certain way, but the more you deviate from simple communication, the more people you’re going to confuse. The biggest problem with this checkpoint is that there’s no objective measure possible for it, even though clear and simple communication is critical for larger populations than many of us are willing to admit to.

Conclusion

A new chapter is being written on this side of the pond on the topic of Web accessibility. How it turns out is anybody’s guess, but my guess is that the outcome will not be satisfactory to anyone. In other words, this is not the road we want to go down.

Accessibility by law is always going to be inferior to accessibility by conscience. I would rather see accessibility happen as the result of thousands of smart, responsible Web designers, rather than thousands of pages of legalese.

And while I’m at it, let me say this to the folks who are demanding bulletproof, objective, testable criteria from the next version of WCAG: this is not what you want. You do not want any authority to state that accessibility is as easy and clean as a mathematical formula. You do not want to be forced to test your writing against Fog indexes, or have entire technologies circumscribed, just for the sake of your own convenience. Any normative test suite for Web accessibility would stifle the creative process of every designer by its very nature, and that’s a worse fate than you could ever imagine. (And much worse for users, as well.) Web designers are much better off using tools that help them create accessible content, and learning the problems and solutions involved in accessibility. WCAG 2.0 is, in my opinion, a step in the right direction. (See also: Kassia Krozser’s view on alt tags.

8 Responses to “Web accessibility litigation: it’s not what we want”

  1. Isofarro says:

    Matt, just a quick note on the difference between Access Now v Southwestern Airlines and Martin v MARTA. The Southwestern (mis)ruling was that under Title III of the ADA, websites are not seen to be a public accommodation – as you correctly note.

    The MARTA case on the other hand was ruled using Title II – which covers public organisations, not private companies. As I understand it, the ruling makes no opinion as to the “public accommodation” of private companies.

  2. Jim Thatcher says:

    Matt … I rarely disagree with you, but I think you’re dead wrong on your viiew of the importance of the law in accessibility policy. It is terrifically important. We do want the pressure of law to encourage business and government to adopt accessibility policies.

    You started off by suggesting that the effect of law was a British or Austrailian thing. I am certain that Section 508 has done more for accessibility than any law anywhere else.

    When I worked for IBM, before Section 508 was passed, the company gave lip service to accessibility; after 508 IBM took accessibility very seriously.

    Were this series of legal actions (Southwest, Justice Department Opinion, NY AG Action) to end up with a clear decision that web businesses were places of public accomodation (as I think it will), then all the work on accessibility will take on a totally new life. Companies will really take notice.

  3. Spitzer Agreement to Make Web Sites Accessible to the Blind and Visually Impaired

  4. Spitzer Agreement to Make Web Sites Accessible to the Blind and Visually Impaired

  5. […] The interesting reading in the settlement is what guidelines were left out – as Matt May discovered. […]

  6. […] Web accessibility litigation: it’s not what we want […]

  7. […] against Soutwest Airlines, the web site owners have lost the case. However in the instances of Ramada and Priceline, although they lost the case, almost no changes were required of the web sites as the court agreed […]

  8. matt says:

    I think this “14.1 Clear and simple language (Priority 1)” was the best way to start.

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