A Very helpful attorney guide for web accessibility to help people with websites and Apps to avoid ADA lawsuits.
Website owners will call legal professionals if they receive a lawsuit or demand letter from a law firm claiming they violated the American Disabilities Act because the site is not accessible. The notice may come as a complete surprise. They were unaware that websites and mobile apps have been deemed ‘places of public accommodation’ and are subject to Rehabilitation Act, Section 508 or the ADA. It is essential to understand that a website must be designed and built so that disabled individuals can use Assistive Technologies, or it is not accessible.
This is not a developer’s fault unless compliance was part of the contract, and the developer has complete control of the website. Generally, a developer turns the website over to the client after building it. The client affects web accessibility.
A client has two choices: fix the current website or build a new one. The cost and time of fixing a website are nearly the same or exceed building a new one. Some websites are built on closed or hosted platforms, such as Weebly or Wix.
They cannot attain compliance due to a locked-down front-side code. Redesigning a WCAG-compliant website begins by training an in-house team or outsourcing to a developer specializing in Section 508 and ADA compliance. The steps involved include
- Tests for color contrast and use in the design phase
- Test incremental units in the development phase
- Conducting a 3-factor audit of the site after development completion and loading of content
- Use automated audit tools periodically until substantial changes dictate a full 3-factor audit.
Accessible websites cost more. They are in high demand, and the service is worth more. Significant added time is required throughout the project—an accessible website costs between ten and 20 percent more to build.
Can You Be Sued for Website Accessibility?
Some entities range from small businesses to non-profits to corporations being sued. Web accessibility is a hot topic—the focus in the U.S. is mainly on the Americans with Disabilities Act, Title III. It mandates ‘places of public accommodation’ must be accessible to those with disabilities. When the law was written, websites were not part of it. However, it has repeatedly been construed that websites come under the umbrella of places of accommodation.
There is no formal guidance at present, but it is clear that websites need to be accessible. Private entities are implicated. Innocent non-profits and mega-corporations can run afoul of the ADA. Title I covers discrimination by employers who have 15 or more employees.
There is no 15-employee threshold for Title III covering places of public accommodation. Entities with less than 15 employees can be found to discriminate against those who are disabled. The Rehabilitation Act also comes into play.
Section 508 requires communication technologies and information to be accessible to federal departments and agencies. Section 504 includes recipients of federal funding, such as universities. Another federal law plaintiff’s lawyers use as a basis for sending demand letters in the real estate industry is The Fair Housing Act.
There are some other federal laws and state laws that need consideration. Entities can find themselves in a state court. FHA, ADA Title II, and Section 508 are the primary federal laws that require attention. If an entity meets the Web Content Accessibility Guidelines 2.1 AA, it will likely be deemed accessible and comply with the law. There are many other legal details.
What Are ADA Requirements for Websites?
Further, in this attorney guide for web accessibility, Read about four critical principles for accessibility conformance are outlined in the WCAG:
Components cannot be imperceivable by any user.
Operation of the interface components and navigation cannot require actions a user cannot perform.
Operation and content cannot be beyond a user’s understanding.
As user agents and technology evolve, content must continue to be accessible.
The basic rules of ADA compliance follow the WCAG principles. They include
- Not creating a separate accessible website
- Paying attention to color contrast
- Avoiding dropdown menus
- Providing alt text for images
- Providing descriptive hyperlink anchor text
- Providing video and audio captions
It is also imperative to include an Accessibility Statement on the website. The accessibility statement communicates the steps that have been taken, additional steps in the planning stage, and an invitation for feedback. It tells users what to expect and communicates you care.
Website architecture and coding may create barriers to access, even if the actions above are covered. Most web development programs offer guidance and themes to aid ADA compliance; plug-ins and modifications may create barriers.
Flash content can be problematic. Clean web design principles are easier to make accessible. Using overlay tools, such as AccessiBe and Userway, is discouraged by accessibility advocates. Test the website to ensure it works for impaired users.
ADA Site Compliance offers evaluation tools that test the accessibility of a website. A report about the alerts and errors is generated. You can plan improvements based on the information. A website that is accessible requires ongoing planning of the website design.
Avoid quick-fix overlays. Focusing on simplicity in site design makes general maintenance and web accessibility easier. Here are eight questions to cover with a web developer.
- Do you evaluate if voice dictation and screen readers are accessible?
- Do you have users beta-test voice dictation and screen reader technology?
- What is your definition of ‘meaningful accessibility for users with disabilities?
- Have prior websites been tested, and are samples available for review?
- Have you created a sample Accessibility Statement?
- Do you use overlays or have accessibility coded into the website and its architecture?
- Do you conduct regular accessibility testing?
- Has work been certified to comply with the WCAG?
WCAG testing software catches less than 30 percent of issues. Do not rely solely on automated testing tools. To ensure compliance, a combination of automated and human testing. Avoid Automated Intelligence remediation solutions.
How Do You Ensure You Are ADA-Compliant?
A business that wants to make its website accessible should begin by hiring a site accessibility consultant. Website accessibility is ADA Site Compliance’s specialty. They conduct an audit and provide information about what needs to be done to remediate a site to make it accessible.
The recommendations will mirror the WCAG 2.0 AA accessibility standards. They are technical standards for website accessibility improvements designed by the World Wide Web Consortium. The goal of the success criteria is to improve access for those with various disabilities, including visual impairment, hearing disabilities, and speech, physical, neurological, and cognitive disabilities.
They also benefit those without disabilities, such as aging individuals or those with ‘temporary disabilities like a broken arm. Companies work toward ADA Site Compliance to implement the recommended changes.
A code can be inserted in the back end to differentiate regular text from headings. Visually impaired visitors can use assistive technology, such as screen readers, to access headings and navigate to various sections of a site.
Our developers also integrate other accessible features like video captions for those who are deaf or suffer from hearing loss and audio and visual CAPTCHAs that test if a user is human. A feature for those with mobility issues is moving through a site’s web pages without using a mouse.
Accessible websites allow navigation with the tab, return key, and up and down arrows on the keyboard. It is recommended that the web accessibility initiative involve the target audience. There are online services for disabled users to review websites and give feedback about their website’s accessibility. It is further suggested companies have internal web accessibility policies and guidelines for third-party vendors providing embedded content on their websites.
Is WCAG a Legal Requirement?
The Web Content Accessibility Guidelines are considered the accessibility gold standard. They are widely respected as the best path to ADA compliance. Whether the law requires WCAG compliance is not a straightforward issue.
Government entities and their contractors are required to conform. The answer is more complicated for private businesses. They are not required to comply with specific WCAG standards, but their sites must be accessible.
In 1998, Section 508 was added. It requires federal government agencies to make their information and electronic technology accessible to members of the public and their employees. In January 2018, Section 508 was revised and required government entities and contractors to comply with WCAG 2.0 AA/A. The answer to the question is simple for federal agencies. WCAG is formalized as the accessibility standard.
So, an Attorney should guide about all of this to their clients for web and app accessibility.
WCAG Compliance and Private Businesses
The ADA is the most-cited law regarding web accessibility compliance. Discrimination based on disability is prohibited in places of public accommodations. The Department of Justice affirmed the ADA applies to websites as well.
Confusion exists because the law did not specify website information or web accessibility guidelines like WCAG in 1990 when it was first enacted. The absence of technical standards does not excuse websites from being accessible.
They are not necessarily violating the ADA if they do not follow specific web standards. Plaintiff‘s lawyers consistently identify and uphold WCAG 2.0 compliance as an acceptable level of accessibility. The courts maintain compliance and provide reasonable accessibility. There is mounting pressure to formalize legal standards. Eventually, the DOJ will clarify how to measure and test website accessibility. It is very likely WCAG will be the requirement.
The Bottom Line
The Supreme Court deems being on a website equal to being in the same place. Even though the DOJ has not issued guidance for ADA application, defending ADA liability for website inaccessibility will likely be unsuccessful.
Businesses can expect demand letters and lawsuits from law firms alleging their inaccessible websites violate the ADA. On October 17, 2019, a U.S. Supreme Court decision denied a petition to review a case against Domino’s Pizza. Initially, a District Court dismissed the case based on primary jurisdiction.
Primary jurisdiction applies when an administrative body better addresses a claim. The Ninth Circuit Court reversed the decision. It disagreed with the primary jurisdiction defense, saying Domino’s had been given fair notice of its legal obligations and duties. By the Supreme Court’s denial of Domino’s petition, the Ninth Circuit‘s opinion stands.
A primary means of forcing compliance is private citizens hiring a law firm and bringing civil actions against companies failing to meet WCAG standards. Courts enter injunctions requiring companies to make their site accessible and readily usable.
The DOJ and Attorney General may intervene and pursue the case. Money damages can be awarded for the harm caused to users. Civil penalties of more than $90.000 for a first violation are possible. Each subsequent violation can result in fines of over $180,000. The court may also order payment of the plaintiff’s attorney fees. The key to making your website accessible is the reasonable accommodations that enable a person with disabilities to use the website unless doing so causes an undue burden.
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The ADA prohibits any private businesses that provide goods or services to the public, referred to as “public accommodations,” from discriminating against those with disabilities. Federal courts have ruled that the ADA includes websites in the definition of public accommodation. As such, websites must offer auxiliary aids and services to low-vision, hearing-impaired, and physically disabled persons, in the same way a business facility must offer wheelchair ramps, braille signage, and sign language interpreters, among other forms of assistance.
All websites must be properly coded for use by electronic screen readers that read aloud to sight-impaired users the visual elements of a webpage. Additionally, all live and pre-recorded audio content must have synchronous captioning for hearing-impaired users.
Websites must accommodate hundreds of keyboard combinations, such as Ctrl + P to print, that people with disabilities depend on to navigate the Internet.
Litigation continues to increase substantially. All business and governmental entities are potential targets for lawsuits and demand letters. Recent actions by the Department of Justice targeting businesses with inaccessible websites will likely create a dramatic increase of litigation risk.
Big box retailer Target Corp. was ordered to pay $6 million – plus $3.7 million more in legal costs – to settle a landmark class action suit brought by the National Federation of the Blind. Other recent defendants in these cases have included McDonald’s, Carnival Cruise Lines, Netflix, Harvard University, Foot Locker, and the National Basketball Association (NBA). Along with these large companies, thousands of small businesses have been subject to ADA website litigation.
Defendants in ADA lawsuits typically pay plaintiff's legal fees, their own legal fees for defending the litigation, and potential additional costs. In all, the average cost can range from tens of thousands of dollars, to above six figures. There are also high intangible costs, such as added stress, time and human capital, as well as reputational damage. Furthermore, if the remediation is incomplete, copycat suits and serial filers can follow, meaning double or triple the outlay. It's vital to implement a long-term strategy for ensuring your website is accessible and legally compliant.