When is comes to website accessibility, there is a difference between a website that is accessible and one that is ADA-compliant, and that difference can have a huge impact on a business.
The Americans with Disabilities Act (ADA) is a law that mainly regulates accessibility for business, government entities, and more. Although the ADA does not discuss websites specifically in the language of the act, United States courts have construed Title III of the ADA to be relevant to website design.
For this reason, a website must meet certain criteria in order to be considered ADA-compliant.
Contingent on the type of website you operate, the measure of its accessibility will depend on how people with disabilities are able to access its functions and content. When you develop your website, it is important to manage the technical aspect of its operation to ensure you are in compliance with the law and that all people, regardless of their level of ability, are able to access your website.
What can a business do to make its website accessible to people with disabilities?
Disabled people should at the very least be able to gain access to all the content and navigate your website without excessive difficulties, in order to benefit from your service offerings or the information you have made available.
How do I Know if My Website is ADA-Compliant?
Both the Department of Justice (DOJ) and United State courts have regularly referenced the Web Content Accessibility Guidelines (WCAG) 2.0 Level AA success criteria as common benchmarks to determine whether or not a website is considered accessible.
There are 38 different requirements included in WCAG 2.0 success criteria. Your website can still be considered accessible without meeting all 38 requirements, but there are some valuable requirements that should be always considered.
WCAG is extremely long and difficult for most non-lawyers to comprehend. In June 2019, new Web Accessibility Standards (WAS) integrate a majority of the essential principles of WCAG, but it is much more straightforward and easier to follow.
There is some wiggle room and adaptability as to exactly how people, establishments, businesses, and organizations choose to comply with web accessibility regulations. Getting the guidance of an ADA-Compliance Attorney is your business’ best bet in ensuring you are following the letter of the law.
While you must make your website accessible, there is no single mandated method by which to accomplish this goal. WAS is a great place to start, as it is significantly less complicated than WCAG. WAS uses a yes/no mythology making it simple to determine whether or not you are compliant.
Web Accessibility Standards (WAS)
The full official Web Accessibility Standards can be found here.
Below we have provided an outline of the Web Accessibility Standards for quick reference:
- Descriptive text
- Nested headings
- Color alone does not convey meaning
- Clear forms
- Uniform labels
- Clean code
- Zoom text
- Color contrast ratio
- Distinctive links
- Consistent layout and navigation
- Descriptive alt text
- No images of text
- Text transcripts
- Closed captioning
- Table data
- Extraneous documents
- No automatic pop-ups
- No automatic video or audio
- No unexpected changes
- Pause updating/refreshing content
- Adjust time limits
- Important submissions
- Keyboard only
- Focus indicator
- Skip navigation
- Search function
Recent Lawsuits for ADA Non-Compliance
Over 6,000 lawsuits were filed against companies whose websites allegedly breached the Americans with Disability Act in the past four years alone. The reasoning behind most of these cases was that screen readers used by visually impaired people could not be used to read the websites in question.
Pacific Trial Attorneys, a plaintiff’s firm, is largely responsible for filing many of these lawsuits. Other law firms, such as Berokim Law in California (Kousha Berokim) have send demand letters to websites claiming that they are inaccessible.
One of these lawsuits, filed against the San Diego County Credit Union, was dismissed after the County Superior Court decided that the ADA and California’s Unruh Act are not applicable to websites as a matter of law. The Court also ordered the plaintiff and Pacific Trial Attorneys to pay the Credit Union for its attorney’s fees.
Many other plaintiff’s attorneys have been sending intimidating demand letters and filing lawsuits pertaining to ADA website compliance. Some of these claims are completely frivolous, and without any merit.
These demand letters regularly claim or suggest that the Department of Justice has established firm guidelines for ADA website compliance.
These claims are untrue and deceptive.
Claims also commonly make references to different organizations, such as the World Wide Web Consortium, WCAG 2.0 guidelines, and Version 2.0 of the Web Contact Accessibility Guides.
Demand letters allege that websites do not meet personal viewer’s standards. However, it is important to note that no official standards have been set by law as of now. Websites relating to restaurants or stores, like Domino’s Pizza, lack standards for official compliance. These issues will be decided by trial court as an open question of fact, which may further open the floodgates for many others to file a suit, looking to reach a quick settlement.
These ADA compliance lawsuits are largely powered by the deficiency of significant and easy-to-implement safe harbor standards. Additionally, in cases involving the ADA, the one-sided attorney’s fees provision often places the plaintiff in a position in which he or she has nothing to lose.
Even in situations in which the company can demonstrate that its website was sufficiently and adequately accommodated disabled people, plaintiffs are not prohibited from filing a lawsuit claiming the exact same thing. Therefore, no finality exists and companies can repeatedly be subjected to more demand letters or extortion. We are still waiting for a court to take up the issue of whether or not the lack of finality makes the application of the ADA to website accessibility unconstitutional.
In the United States, there are more than 100 million different websites. A large majority of those websites fail to comply with the vague standards plaintiff’s attorneys argue that the courts should implement.
The Significance of Robles v. Domino’s Pizza
Robles vs. Domino’s Pizza, which was decided on January 15, 2019 by the Ninth Circuit, is a crucial case that addressed the issues of proper jurisdiction, due process, and absence of strict website standards.
The Court determined that there are not any specific standards for websites to ensure that the visually impaired are able to access them. However, plaintiffs are still allowed to file lawsuits to attempt to show that a particular website inadequately provided accessibility. Even if the plaintiff fails to win in the lawsuit, the mere filing should be enough to make the company use up time, money, and other resources to rationalize the design of its website.
Additionally, the Ninth Circuit Court, appeared to hold that stand-alone websites without a connection to a physical location or brick and mortar store are exempt from the ADA.
Although Domino’s Pizza is a huge business enterprise that has a vast amount of resources on hand to defend ADA accessibility claims or else undertake the complicated task of redesigning and altering its website, the Court’s ruling appears to apply to even the smallest of businesses.
For instance, an auto mechanic who sets up a simple two-page website selling tires, or a carpenter’s website affirming that she has a little workshop where she can repair your ripped carpet or rugs, would both be subjected to the ADA accessibility claims.
Upon the Court’s conclusion, it seemed to be dependent on the ADA’s language and particular guidelines (Note: this did not include website standards) that were enacted over time by the DOJ, without Congress ever passing a law. Thus, it is rather necessary that Congress and the DOJ shed more light and clarify laws regarding website accessibility.
While waiting for the same to happen, we can continue to anticipate a flood of lawsuits related to ADA website accessibility involving businesses of all different sizes, including self-employed entrepreneurs.
In a letter to Congress, the DOJ expressed that without the adoption of specific technical requirements for websites through passing laws, public accommodations maintain the flexibility in choosing exactly how to comply with the ADA’s general requirements. Thus, noncompliance along with website accessibility voluntary technical standards do not automatically demonstrate noncompliance with ADA accessibility.
In conclusion, although there is no obligation to follow web accessibility guidelines, companies do have an obligation to provide an accessible website. This somewhat vague and confusing set of regulations is difficult for any business owner to navigate without the skilled help of an experienced ADA-Compliance Lawyer.
Although the DOJ failed to create guidelines for accessible websites, companies are recommended to follow W3C’s Web Content Accessibility Guidelines, version 2.1, at level AA. After all, companies still need somewhere to begin. Although you are not obligated to obey definite guidelines, creating your own route toward web accessibility will be of little benefit to your business. Instead, follow existing standards to ensure your business is compliant, even though there is still a lot of room for your own interpretation of those standards.
Advice on Redesigning Your Website to be ADA Compliant
Although companies are generally unable to make their websites 100% compliant, there are several actions that can be carried out to make sure that their sites are more accessible to differently-abled people. Here are some of the most significant steps:
- Carefully look over the Website Content Accessibility Guidelines (WCAG 2.0): These guidelines suggest various ways to make your website more accessible.
- Conduct several audits of your site: Google’s WAVE Web Accessibility Tool, is an excellent gismo to view any accessibility problems, like missing alt tags and styles.
- Make certain that all images on your website contain descriptive alt tags: Screen readers and voiceovers use alt tags to explain various website elements to users. Alt text is crucial for enabling screen reading software to convey images to visually impaired website goers. Additionally, it allows search engines such as Google and Yahoo to display various images based on the written descriptions and in return are able to display the search results at a greater rate of accuracy. For this purpose, W3C has a directory of web accessibility assessment instruments.
- Fully apply the best practices of web writing if you are developing new content. By maintaining uncomplicated and conversational website content, you can assist users by easing their efforts to scan content. Acronyms and abbreviations like CIA, should contain periods in-between the letters in order to assist the proper pronunciation by screen readers. Additionally, through the use of subheadings and headings websites creators can easily break down complex content into easier to follow and smaller segments.
- Review all of the elements and styles on your website, like buttons, headings and links: It is important to remember that users with disabilities may access your website. Smaller fonts and fonts that are not dark enough compared to the background, may make reading the fonts very difficult for some visually impaired users..
- Prompt information on forms. Forms on a website need to make it possible for visually impaired to purchase with the assistance of a sighted companion. This can be accomplished through proper prompting text.
- Create accessible drop-down menus. If visually impaired do not have the option to choose the quantity or size of the items they want to buy, without accessible drop-down menus. Also, they may be incapable of navigating through different pages without alt-text in place on the website’s menus.
- Review your website’s coding. Have your developer completely analyze all the coding and CSS in order to make sure that the best practices are all being applied and do away with any outdated code.
Other important tests to complete on your website include:
- Ensuring your website is Operable: Your website should be easy for users to navigate through both the use of a mouse and keyboard-only commands. People with visual or motor impairments typically have to depend solely on the keyboard. Thus, your site should not overly rely on users using a mouse.
- Perceivability: Ensure that users are able to locate and process all the site’s information effectively. This includes audio descriptions for all subject matter in order to assist those suffering from visual impairments.
- Reasonably comprehensible: All users should be able to understand your website’s information. Texts should be readable and include the use of tools to assist with the identification of definitions pertaining to various words or phrases. Additionally, you should expand abbreviations and include simpler language or make another version accessible which does not require a high level of reading ability. WCAG 2.1 provides supplementary ideas regarding making your website more understandable.
- Robust website: Permit your website to be able to evolve and adjust to undergo rapidly changing requirements. For instance, make sure that the website is compatible with the latest screen reading programs and devices.
Periodic Assessment of Your Website
Periodically assessing your website for ADA and WCAG compliance and formulating the essential modifications can help you make sure that your website is accessible to those with disabilities. Even though the ADA’s website accessibility best practices tool kit was specifically designed for local and state governments, many businesses discover that is a valuable tool toward achieving website ADA compliance.
Regularly assessing your website’s compliance is crucial to preventing any potential ADA accessibility lawsuits or other legal problems. Make certain that your company is current on all ADA requirements. Periodically verify if any governmental agencies, such as the DOJ, have issued any updates, recommendations, or other related news on these important requirements. Your business attorney can help you conduct these regular assessments to ensure ADA compliance.
The important thing to remember is that once you design or redesign your website to be accessible, you must maintain its accessibility. That means every time you develop new content or upload media, it too must be accessible. The questions of accessibility extends to every audio clip, image, and/or video file added to your website.
Other great practices to ensure web compliance include training employees and staff, having a web page to describe your business’s policies relating to accessibility, training and assigning a knowledgeable employee as the accessibility coordinator, employing an independent consultant to ensure compliance, and always welcoming criticism or other vital feedback.
Avoid throwing away money on scans and audits from businesses that do not fix websites. A majority of these companies simply tell you the problems, but do not offer any practical solutions in assisting with implementing them. Furthermore, automated assessments or checks are usually not very thorough and will only shine a light on a portion of your website’s actual accessibility problems. Automated checks should only be used only as an ancillary guide. Accessibility experts are necessary to physically review your entire website.
What to do in Case of a Website Accessibility Lawsuit
In demand letters and recent lawsuits, the most frequent grievance is regarding alt text, which is fairly easy to fix. To fix alt text, all that needs to be accomplished is changing the value of your alt tags in order to communicate what exactly an image on your website depicts.
Another valuable practice is to put closed captioning on all your videos. Adding closed captions is a moderately straightforward process, especially if your videos are hosted on YouTube. Lawsuits relating to ADA website compliance have been being filed all for this reason, as well.
A record number of ADA compliance website lawsuits were filed in 2018, but 2019 is going to break and greatly exceed that record. Industries most impacted include restaurants, e-commerce stores, hotels, banks, major retailers, service provides, consumer goods companies, and many more.
These lawsuits have targeted huge corporations like Burger King, Winn-Dixie, Target, Amazon, Nike, and Hershey’s, as well as smaller mom and pop shops.
This trend of ADA accessibility lawsuits is showing no signs of abatement. We recommend that companies work on making their websites as accessible as possible as soon as possible. Be proactive to prevent costly litigation as well as bad press.
To prevent lawsuits, make your website ADA compliant before it is too late. Start off taking whatever steps you are able to now, instead of procrastinating. The average settlement for recent ADA website compliance issues normally range from around $5,000 to $60,000, so do not wait to be targeted by a law firm.
Even if you decided to settle after receiving a demand letter, you still need to adapt your website so that it is accessible in order to prevent encountering the same legal issues does the road. Settling does nothing to solve your accessibility problem. If you are sued by one plaintiff, it does not preclude you from becoming the target of another lawsuit. The Americans with Disabilities Act is considered a strict liability law. Under the ADA, you are held to a higher standard, and there are no valid defenses for non-compliance.
Compliance is the only thing that can save your website from strict liability.
When a lawsuit is filed regarding your website accessibility, there is a chance that you can have it dismissed on mootness by remediating your website right away. Then, there is no longer a dispute from the plaintiff because you already made your website accessible. That does not mean you should wait to make your website accessible. Work with an experienced ADA Compliance Attorney today to ensure your company is safe from prosecution
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