In the past four years, there has been an explosion of lawsuits around what is a surprisingly contentious topic: whether privately owned websites offering business services on the web are required to conform to technical guidance around web accessibility, and what it means to be ADA compliant online.
Countless opinion pieces have been written on the subject, primarily because the agency in charge of creating the rules around web accessibility has never given clear directives on what compliance is actually required. In 2003, when the first guidance around web accessibility was released by the DOJ, it only applied to Title II entities, namely federal and state government sites. Non-governmental sites weren’t even mentioned, and the de facto understanding was that web accessibility was only a requirement for Title II regulated websites.
Over the course of the next eleven years, countless attempts to create a comprehensive set of accessibility rules for private companies on the web resulted in exactly zero actual administrative guidelines. In 2015, noting that some governmental services were being offered through non-governmental sites, the DOJ announced that it was planning on releasing an updated set of rules in early 2016 to finally provide clear guidance on compliance expectations for public websites.
That never happened.
Noting the ambiguous legal space occupied by commercial websites offering core business services online, an uptick in accessibility lawsuits began over the next two years, as civil lawyers used tort law to test the boundaries of accessibility requirements, with wildly varying results. Winn Dixie, Dominos, and Target all had well publicized losses which cost them hundreds of thousands in remediation. Noting a 200% increase in web accessibility lawsuits, members of Congress pressed the DOJ for hard guidelines in 2018.
The response was less than conclusive.
The DOJ referenced executive orders intending to reduce both the total number of regulations and the cost of regulatory compliance, and indicated it was still evaluating whether hard regulations were actually necessary. Additionally, it provided the following opinion:
“Absent the adoption of specific technical requirements for websites through rulemaking, public accommodations have flexibility in how to comply with the ADA’s general requirements of nondiscrimination and effective communication. Accordingly, noncompliance with a voluntary technical standard for website accessibility does not necessarily indicate noncompliance with the ADA.”
Translation: “Since we haven’t really made any rules, there really aren’t any rules.”
This puts private businesses who offer core services online in a particularly tricky situation: because the boundaries of what constitute compliance are being tested via litigation instead of legislation, there is no way to be “safe” from the spectre of an ADA lawsuit. Compliance cannot be certified in any meaningful way, because there are no clear rules to conform to. So what’s a good intentioned business owner to do?
The good news is, in many ADA lawsuits, judges are predominantly looking at remediation as a first response as opposed to monetary damages, so a good faith effort to provide equal access to your web services in most cases will preclude anyone even considering your site a target for ADA litigation. What’s more, many of the technical aspects of following the WCAG Guidelines provide an unexpected net benefit: they make your site more SEO friendly.
If you run a business website, here are some key steps you can take to help address accessibility issues:
Run the WAVE Accessibility check on your website, and review the reported errors and warnings.
WebAIM (Web Accessibility In Mind) is a non-profit organization at the University of Utah which provides resources and guidance for website owners to improve accessibility. Their WAVE tool allows you to scan your website for common accessibility problems, and provides a visual report showing where improvements can be made.
Incorporate accessibility software into your site to provide enhanced access.
Even if the foundational code of your website is built in the most accessibility conscious way possible, there’s no guarantee that all content on the site will follow best practices. This is where accessibility enhancement software comes into play. Software platforms like AccessiBe use machine learning to scan your content and serve up accessible versions when they detect accessibility options or software being used in the browser. They also provide dynamic options for site visitors to quickly enhance usability, like increasing contrast, upsizing fonts, and otherwise streamlining content.
Signal that accessibility matters to you with an Accessibility Statement.
Much like a Privacy statement addresses use of data on your site, an Accessibility statement lets the end user know what efforts you’ve made to make the site accessible, the level of accessibility applied, and how to contact someone if they run into an accessibility issue using the website. You can create this statement using the W3C Accessiblity Statement Generator.
Until the DOJ creates a formal set of administrative rules regarding ADA compliance online, private website owners will remain at risk of being caught up in the process of legislation by litigation currently unfolding in courtrooms across the country. By making a good faith effort to provide accessibility options, and giving website users a channel to report accessibility issues, business owners can significantly reduce their chances of falling afoul of a lawsuit.
Additional Resources: Accessibility Checklist
The following items should be checked for on your website to meet the two most common levels of accessibility (A and AA):
Level A Accessibility
- Images have alternate text that can be read by screen reader software.
- Recorded video content includes captions.
- Video or audio-only content is accompanied by text transcript or description.
- Links are provided to media players required to view content.
- Headings are presented in logical order.
- “b” and “i” tags are replaced with “strong” and “em.”
- There are no empty links or heading tags.
- Presentation does not rely solely on color.
- Automatically-played audio does not occur or can be stopped.
- The keyboard can be used to navigate the site.
- Keyboard focus is never stuck on one particular page element.
- Time limits provide notifications to the user.
- Automatically scrolling or blinking content can be stopped.
- No strobe effects or rapidly flashing colors occur on the site.
- “Skip navigation” functionality allows keyboard users to quickly access content.
- Page titles clearly and succinctly describe page content.
- Buttons and links are clearly and logically named.
- The language of each page is identified in code.
- Elements receiving focus do not change content in a substantial way.
- Invalid form input is identified to the user.
- Forms have labels and legends that can be read by screen reader software.
- There are no major validation errors.
Level AA Accessibility
- Live video or audio content includes captions.
- Contrast ratio between text and page backgrounds is at least 4.5-to-1.
- Text on pages can be resized to 200% while still maintaining form.
- Images are not used where text can achieve the same purpose.
- Pages on the site can be accessed in multiple ways.
- Keyboard focus is visible and clear.
- The language of content is identified in code with any language changes.
- Menus and buttons are used consistently regardless of the user’s location in the site.
- Users are given suggestions on how to solve input errors.