ADA Interpreted Too Broadly

October 16, 2002

This is one of those touchy subjects where one runs the risk of being insensitive to those with disabilities.   Up front I want you to understand that that’s not my intention.   My intention is to call to your attention a potential bureaucratic and economic nightmare, a risk of squelching the burgeoning Internet by over-application of law.

The case is Gumson v. Southwest Airlines.   Robert Gumson is blind.   He tried to access Southwest Airlines’ web site to book a flight but found it inaccessible to the blind.   So he’s suing with the help of disability rights group Access Now.   American Airlines is also named in the suit.   This opens up a whole nimiety of questions and problems.   His basic beef is that Southwest and American offer cheaper fares via the website.   If he can’t access the website then he can’t get the cheaper fare thus he’s being discriminated against under the Americans With Disabilities Act.   The ADA was designed to give handicapped citizens reasonable access to physical businesses but does it also apply to the Internet?   Interesting question.

I believe, in most cases, it does not and here’s why.   For most businesses, the Internet is merely an extension of their regular business.   An added bonus, if you will.   It doesn’t replace the business but simply augments it.   The reason airlines are able to offer cheaper fares via their websites is because they don’t have to employ a reservation agent to book the flight.   It’s all done electronically.

Under the ADA, businesses are required to provide “reasonable accommodations” to serve those with disabilities.   If the airlines have to go to the expense of making their sites accessible to a relative few then that might very well drive up the cost of those air fares for everyone else.   If the airlines could provide the additional service and make a profit, believe me, they would already be doing it.   Obviously, it isn’t cost-effective and that’s why the airlines are fighting it in court.

But should they be required to retool their sites?   The ADA website states, “an employer is not required to make an accommodation if it would impose an "undue hardship" on the operation of the employer's business. "Undue hardship" is defined as an "action requiring significant difficulty or expense"”

Where the ADA might very well apply to the Internet is in the case of businesses like Amazon.com that derive most or all of their business from the Internet.   It could be argued that they should comply with ADA regulations because that’s the only access to their business.

What I can’t see is opening up every other web site on the Internet to litigation.   Take our web site at PhilValentine.com, for instance.   If we start offering audio cuts from the show, will we have to install closed captioning software for the hearing impaired?   Will we be forced to offer our text in audio form for the blind?   If we don’t comply will we be fined or shut down – or both?

You see where this could lead.   Where the Internet is concerned, the onus is on the user to purchase the gear necessary to surf the web.   Those who believe otherwise could argue that those unable to afford a cable modem are being discriminated against and must be given free cable.   Those with slower computers must be given faster, state-of-the-art machines.

What’s more disturbing is the prospect of millions of web sites folding under the pressure to comply with the ADA.   We’ve managed to keep government at bay for the last decade and allow the Internet to function relatively unfettered.   I see no reason to smother it now.