Technology does astounding things like splice genes and recycles photons, but it won’t make your website accessible and ADA compliant. That’s because the technological 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 Software Auditing Technology Can Accomplish
Technological software 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 defacto 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 from 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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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.
Federal lawsuits filed in 2017 increased 225% over 2016; this percentage would be significantly higher if it included litigation filed in state courts against thousandsof businesses. Retail businesses have been hit hardest, followed by hotels, restaurants, colleges, hospitals, casinos, and banks. But any business that maintains a website, regardless of its size or industry, is vulnerable.
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 web litigation.
Defendants in ADA lawsuits typically pay plaintiff's legal fees, plus their own web acccessibility auditing and remediation costs. In all, the average cost can range from tens of thousands of dollars and above six figures. Furthermore, if the remediation is incomplete, copycat suits and serial filers can follow, meaning double or triple the outlay. There are also high intangible costs for a business, such as added stress, time and human capital, as well as reputational damage.