The Human Element: Why Software Auditing Won’t Make Your Website ADA Compliant

Published: 6/01/2020

Technology does astounding things like splice genes and recycle photons, but it won’t make your website accessible and ADA compliant. That’s because the technological (i.e. software) auditing tools that many businesses use can only find up to around 30 percent of the barriers faced by web users with disabilities. Often, it’s the other 70 percent—those undetectable by software—that prevent those users from booking hotel rooms, buying plane tickets, or applying for jobs online. And it’s that other 70 percent that frequently attracts costly and time-consuming lawsuits.


What Technology Can Accomplish

Technological auditing tools have their place. For one thing, they can efficiently scan vast amounts of data and pinpoint common compliance failures like missing alternative text tags (“alt tags”). Software-based audits also find error patterns that warrant a closer look. Developers can use this data to decide which fixes will truly improve a website’s usability and which ones matter less. The speed and pattern-spotting capabilities of technology let programmers sift through countless lines of HTML in seconds. Think of tech audits the way a college admissions board might view SAT scores when screening thousands of applicants: they’re an important directional tool and one key data point, but they don’t tell the whole story.


The Case for Eyeballs & Brains

A full picture of your website’s ADA compliance requires human judgment, since many features of its source code, such as the alt tags described above, are subjective. Your alt tags beside a picture of two houses may read “two horses,” which seems to a) pass muster for a screen reader, and b) meet the de facto WCAG 2.0 AA standard. But for blind visitors scanning your real estate listings, that small typo can be a frustrating virtual barrier that might also violate federal law.

Ultimately, technology, for all its merits, still cannot match the human brain’s cognitive fine tuning. While that day may come soon, companies hoping to get compliant, or to avoid or settle litigation, must rely on humans. And the United States government agrees. Its General Services Administration website states: “Automated scanning cannot determine if a website is accessible or conformant with accessibility standards. Many accessibility checks require human judgment and must be evaluated manually using different techniques.”


Risk-Management vs. Remediation

Which auditing method—software, human beings, or a combination thereof—is best for your business? The answer depends on your goals, your budget, and your timeline. If you simply wish to lower your risk exposure to lawsuits quickly and cheaply, tech auditing is a starting point. For hundreds of dollars or less, you can capture regular failures such as improper font-size coding or contrast ratios, two common culprits in non-compliance. Your software-based audit report will provide you specific examples of errors. Armed with this knowledge, an adept IT or marketing team can then fix these problems and improve your website’s accessibility. While that’s certainly meaningful risk-management, your website may remain non-compliant and prone to a “surf-by” suit. What you have effectively done is put a big, bright anti-theft lock across your car’s steering wheel. It may well deter a thief trolling the street for soft targets, but it won’t stop a determined one from stealing your ride.

Enter remediation. The most reliable way to make your website accessible to all—a worthy moral aim, separate from litigation defense—is by fixing as many errors as you can. And the only way to do that is by hiring human expert auditors to manually test every part of your website with a mix of screen reading software and keyboard-only navigational tools. This takes time (maybe months, based on your number of pages) as well as money. Human auditors can spend many hours testing for barriers in your website’s processes. They may try to complete a purchase on your checkout page. Or they may check for required “skip links” that let users bypass your drop-down menus and go straight to the content they’re seeking. Neither test can be done by software alone.

These tactics and others like them are the same ones professional plaintiffs use when targeting your website. In under a minute, “testers” can decide if you’re an easy mark, whether or not they earnestly intend to use your company’s product or service. You may believe that your company operates within a niche that makes it irrelevant to most web users and that your website is thus immune to a non-compliance claim. But depending on the legal jurisdiction, factors such as your visitors’ physical location, wallet size, or specific disability may have little or no bearing on your website’s compliance or the outcome of a potential lawsuit. You can be a luxury yacht broker in Florida or a 99-cent store in Alaska. In either case, as a “public accommodation” under Title III of the ADA, you can’t discriminate against protected classes. Your website should be accessible.

Once You’ve Been Sued

Once you’ve been sued, your options narrow. Risk-management now is like buying insurance after the hurricane has leveled your home. You must rebuild, which in the web accessibility world means fully remediate your website. A tech audit, or even a “high-level” manual test—which some vendors deceptively sell as a full solution—won’t provide the full blueprint you need to make your website usable, which poses two problems:

First, you could end up violating your settlement agreement. The fact is, no matter how convinced you are that a judge will see the logic of your defense and rule in your favor, many website accessibility cases end in a private settlement, which typically includes your agreement to a remediation plan. If you then fail to remove your virtual barriers within an allotted time, you could face further legal action and costs.

Second, you may now be exposed to copycat suits from other plaintiffs, who can argue that they should be allowed to proceed with identical claims against you, regardless of your prior case’s outcome. In Gniewkowski v. Party City, the national retail chain sought to stop a suit under the principle of res judicata, arguing that the company’s earlier private settlement of a similar case barred the claim of the new plaintiff in a different state. The court in the second case disagreed and denied the motion. At the very least, an incomplete remediation plan can leave you exposed to further litigation.

The Best Defense

The lesson for those in litigation is clear: spend the money for human auditors to test your website, page by page, item by item. Have your web developer or other technical lead use your detailed audit report to make all the necessary changes. Retest your website to make sure you’ve caught all the problems and not created any new ones in the process. Then invest in some level of ongoing human auditing—monthly, quarterly, semi-annually—to complement your periodic technical reports. Remediated websites often don’t stay that way for long. They can fall out of WCAG conformance as soon as the standards are updated or your content changes. Over time, the odds are that a “set-it-and-forget-it” strategy will render your website inaccessible and land you back at your lawyer’s office.

Most of all, steer well clear of software-only solutions when addressing the compliance health of your website and other digital assets. Human beings may be losing ground daily to artificial intelligence and machine learning. But in the world of website accessibility, they still remain your best defense.

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