There was a case filed in California in October that makes me think of a question I've been asked multiple times. "You drive?!!" As if I shouldn't be allowed on the road because my ears aren't perfect.

The plaintiff in this case is basically being asked, "You play video games?!!" In fact, he's suing for the right to play them like everyone else -- to make them accessible to the visually impaired.

This case is interesting in that it raises questions about accessible games for people who are deaf and hard of hearing. If Alexander Stern wins his suit against Sony, theoretically it provides a foundation for similar suits regarding access for other disabilities. 

Stern contends that Sony has not come up with reasonable modifications to make its games accessible and that its actions have caused visually impaired gamers to lose money because Stern is unable to participate in an official auction site. In his suit, he says that many games make accommodations for other disabilities, such as color options for the color blind, voice over dialogue for the visually impaired, and closed captions. Some games do have captions -- who knows how many, though; I'm sure it's not consistent and not easy to find out when you're standing in the aisle of a store.

Alexander Stern's lawyer happens to also be his father, Andrew Stern. I contacted him, but he has a policy of not commenting to the press while litigation is ongoing.

John Stanton, a Washington, DC lawyer with significant ADA experience, says Stern's biggest hurdle is convincing the court that Sony is a place of public accommodation. "People trying to get the ADA applied to Internet web sites have had a very hard time succeeding," Stanton says. "I think you might be able to get something like Home Depot (otherwise a store) to make its web site accessible so you can place orders through it... The ADA (which was passed in 1990) just hasn't kept up with technology. It's been a source of great frustration among disability advocates as the Internet becomes more prevalent in our lives."

Stanton says that it's possible that California has some state accessibility laws he doesn't know about, but if Stern is just arguing ADA he has a tough road ahead of him. If he finds a way to win, it would be a big breakthrough for people with disabilities. "But that's kind of like saying that if a cancer patient gets cured from some drug, it would be a boon to HIV people everywhere," says Stanton. "It just won't happen. The law as it currently stands is very much stacked against Stern. I wish I was wrong, but I'm reasonably confident in predicting that Stern's suit is going nowhere."

It all comes down to reasonable accommodation. The AbleGamers Foundation -- which is committed in supporting the advancement of accessibility in the digital entertainment space -- released a statement in early November about Stern's case. Mark Barlet, President of the AbleGamers Foundation says in this statement, "As a person with disabilities, I understand that there are limitations that I am going to face in life. This is the nature of having a disability." He understands Stern's frustration but doesn't believe the courts are the place to forward accessibility in the gaming space, because he wants the games to be fun for as many people as possible, and allow content producers to work with organizations like his to make reasonable changes. 

So what is being done now to make games accessible? The AbleGamers Foundation now reviews games in terms of accessibility. From a press release: "Each game title is given a score from 1 to 10 in the areas of visual disabilities, hearing disabilities, and motion impaired disabilities.  The overall score is then calculated, along with additional details such as the presence of close captioning, speed settings, difficulty settings, colorblind options, and many more game accessibility standards."

In reality, it would be very technically difficult and expensive to make certain games accessible to all disabilities. For example, making a first-person shooter accessible to the blind would be very challenging and would likely require a lot of software development. Even if the case is successful or settles in a positive manner, some games may never be fully accessible to all disabilities.

"There are countless sites out there that review games for their graphics and sound, but no one is looking at the game from the standpoint of accessibility. With 63 million Americans with disabilities this is a focus that is needed and who better to do it than the flagship site for disabled gamers, AbleGamers.com," says Barlet. 

He adds, "I hope that game makers now add AbleGamers to their list of news outlets to send review copies to." Studies show that as much as 9 percent of all gamers are disabled, and as such AbleGamers was created to guide disabled gamers through mainstream gaming with its first of its kind video game review section."

So lets go drive and play video games. Who's with me?

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