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February 22, 2023 | Uncategorized
Based on a recent wave of litigation—and the ensuing press and industry coverage—organizations around the globe are clambering to ensure their website is ADA compliant. Updating an existing site to make it compliant can be a painful and costly process, especially for smaller businesses on a tight budget. However when those costs are weighed against legal fees and potential court judgements, fixing a website is a much cheaper solution, in the long run.
The Internet brought a new wave of ADA concerns, with solutions which have not been fully defined. We know more and more of our daily interactions happen online, and that 19 percent of Americans (56.7 million people) have disabilities, many of which affect their ability to use the web. Because many companies’ core business is online, it has become increasingly important for them to stay in the know about how its accessibility (or lack thereof) can impact them legally. Before diving in deeper, let’s start by defining ADA Law.
While most businesses are aware of the ADA compliance protocols for their physical space — in large part because of building codes and inspections — most have no idea of the requirements for the digital aspects of their interaction with users.
With roots in the Civil Rights Act of 1964, the Americans with Disabilities (ADA) was enacted in 1990. According to the National Network, it was designed to “prohibit discrimination against individuals with disabilities in all areas of public life, including jobs, schools, transportation, and all public and private places that are open to the general public”. ADA law has changed significantly in the past 55 years, with the potential for more changes in the future.
Unfortunately, the waters have always been muddy surrounding ADA website compliance. While there are agreed-upon standards, there aren’t inspectors and clear paths to remediate fines, as there are with physical spaces. Even the rules that do exist have never been as clear as they should be. Additionally, Congress enacted the ADA Amendments Act to clarify the meaning and interpretation of the ADA definition of “disability” to ensure that it would be broadly defined, without extensive analysis. This creates even more potential for lawsuits.
As a company, if your website is not ADA compliant, you are in direct violation of Title III of ADA law. However, the majority of online interactions are not compliant (famously, the ADA’s site was badly out of compliance for years), which puts the social pressure squarely on the side of “don’t worry about it.”
That is changing. In 2013, there were roughly 2,700 Title III lawsuits, and 2018 was closer to 9,500—a 250+% increase in 5 years—with no sign of slowing down! Where the government is failing to take action, lawyers are stepping in, and, while some of these suits are clearly predatory, they’re also in the right.
Title III requires that owners of public places of accommodation give people with disabilities equal access to resources. Given that we live in 2019 and a great deal of business transactions occur online, the bar for online compliance should be higher, and companies who don’t meet basic standards are in violation, just as clearly if a company’s bathroom was too small to accomodate wheelchairs.
If you choose to ignore this, you’re definitely at risk of costly litigation.
Despite there being little to no enforcement, and a general lack of clarity around compliance requirements, it’s a good idea not to leave something like this to chance.
Two primary rules seem to apply to this:
That boils down to: “If you have a business that requires accommodations for your public spaces, your website, and other digital assets should also be compliant.”
It’s also important to note that many ADA-related lawsuits have been successful, further stressing the urgency of making your website as compliant as possible sooner rather than later. Because there is a clear lack of regulations, companies should not feel secure that courts will rule in their favor, should things escalate to that level. In short, you are probably more than likely required to comply and should take all necessary precautions.
The best way to know if your website is compliant is by reviewing the World Wide Web Consortium’s Web Content Accessibility Guidelines. Abbreviated as WCAG 2.0 and originally developed for use in European countries, these are the guiding principles for courts when assessing whether a website accommodates disabled individuals. Viewed as the closest thing to a set of rules, WCAG 2.0 informs many online accessibility laws and offers a strong list of recommendations for American organizations striving to accommodate all individuals.
As Kevin Rivenburgh frames it, “ The ADA is the legal side, are you in compliance with the law? And accessibility is the technical or developmental side, how well can persons with disabilities access your website?” Making a website accessible means that it meets all of the WCAG 2.0 Level AA success criteria. This is where you come in. WCAG guidelines have three varying levels of accessibility: Level A, Level AA, and Level AAA. This helps you understand your website’s accessibility and the urgency of what you need to change. Level A is most urgent and includes anything that prevents a disabled user’s ability to utilize a website. Level AA refers to areas of a website that could be enhanced in some way to give the disabled user the full experience. Level AAA is the gold standard for websites and ultimately meets and expands on the standards of level A and AA.
THERE ARE FOUR AREAS THAT ACCESSIBILITY ISSUES CAN FALL UNDER. THEY ARE:
In the physical world, architects, designers and builders are creating spaces with accessibility in mind. For those hesitant to commit fully to accessibility, the Americans with Disabilities Act (ADA), set up frameworks, inspections, and punitive damages to ensure public spaces could be used by all people.
Despite the broad move to online commerce, no similar measures have been implemented online. Until now.
While the legislative and executive bodies have failed to make progress, courts have been busy. There was a 281% increase in ADA lawsuits from 2017 to 2018, and we expect to see a similar uptick in 2019 (the numbers aren’t in, as of writing).
Plaintiffs have been filing, and winning, cases against companies who weren’t making accomodations for disabled users on their sites. Because these were primarily state and local courts, this led to a patchwork of precedent and further confusion about who is affected and what they should do about it.
In October of 2019, the Supreme Court handed down a ruling that disability rights activists consider a victory. The court declined to hear Domino’s Pizza’s petition about whether or not its website is accessible, upholding a lower court decision.
The suit was brought against Domino’s by Guillermo Robles, a blind man who was unable to order pizza or receive a discount through the company’s website or app. Domino’s argued that because no legal statutes exist defining the requirements for online ADA compliance, they were not liable for their failure to serve users with disabilities.
Circuit Judge John B. Owens writing in the lower court’s decision is clear:
“At least since 1996, Domino’s has been on notice that its online offerings must effectively communicate with its disabled customers and facilitate ‘full and equal enjoyment’ of Domino’s goods and services.”
When the Supreme Court upheld this decision, they effectively made this federal law in the US.
Businesses, you’re now effectively on notice, too.
First, review your risk. There are a number of online resources to help determine your liability, including ours. The bottom line is, if you serve customers online, you are a target for litigation.
Then, do something. That may sound trite, but progress is better than perfection, at least while the legal ramifications continue to shake out. For now, a good faith-effort may protect your business in court and garner good will from your audience.
With these guidelines laying the groundwork for how best to comply with ADA law in America, many organizations increasingly have more clarity around the standards required of them and how to best accommodate disabled users. The best course of action is to act on website accessibility NOW. You simply cannot afford to wait another day. Whether that is with small or large steps, all effort is worthwhile in protecting your company so you can truly focus on what you’re best at: conducting business and encouraging a myriad of users to access your content.
Website administrators are slowly becoming more aware that ADA compliance is a requirement, not an option. But where do you start?
WordPress, as a platform, offers a large number of plugins to help report on what needs fixing from a technological standpoint; but it doesn’t do much of the under-the-hood optimization that your disabled users are more likely to need. Bringing your WordPress theme and plugins in line with accessibility standards can improve experiences for visitors, offer better usability for all, and establish brand loyalty. Continue reading to learn how to make your WordPress website compliant with ADA guidelines.
In order to become compliant, your website will require updates to comply with Americans with Disabilities Act Title III; which more or less means making sure that your website is accessible to all users. Because there is no legal standard for ADA, we default to WCAG (Web Content Accessibility Guidelines) 2.1 guidelines, combined with strategic planning and common sense for who is using your site and how they are using it.
WordPress, itself, is a highly-configurable tool for content management; but if your visitors can’t interact with your website or if certain areas of the site offer more challenges to disabled people than help, you may want to continue reading. Limiting access to content by disabled people is, in effect, a violation of Title III of the Act.
Your WordPress theme houses your template code and most of the markup for your website. This is the majority of where your work will be if you’re using a custom theme and needing to make accessibility updates. ADA compliance is all about how things happen in the browser for the other person, and your theme is a huge part of that.
One of the biggest benefits of WordPress is that it allows people of all skill levels to edit their own sites. Unfortunately, that generally means your compliance score will likely go down over time. Regular testing and maintenance are required to keep a site in compliance.
For any plugins that modify the experience on the front end, of your site, new markup is being sent to the browser to add whatever element or widget is being added to your website. If those plugin developers haven’t accounted for accessibility and ADA compliance in their plugin, those elements on your website could be working you away from your goal. Take care and use caution in what you’re putting onto your website.
When considering to include a new plugin, wonder the following:
Some plugins are all about helping. And while the majority of them don’t report on 100% of the ADA problems with your WordPress site, they’re still quite helpful in some cases.
Here are a few of the well-known WordPress plugins that help with accessibility and get you closer to ADA compliance:
In addition to whatever work you do in planning and building your site, testing is a must. There are a number of solutions available for testing your website for accessibility compliance. A few of them include:
For the most part, the automated testing tools will catch many issues to be fixed by a web developer or content author. However, manual testing is often still going to be required for the majority of all websites you’re attempting to optimize if you want to ensure you are meeting ADA requirements. At the end of the day, it helps to pause and think about how a disabled person might interact with your website. Are there any places on your website that a disabled visitor cannot get to? Is there a feature that they aren’t able to interact with? Can they consume all of your content?
While tools have continued to improve, ADA compliance is still challenging to implement and maintain in the real world.
Ultimately you have to remember that ADA isn’t something where you can use a one and done solution. The standards of ADA compliance are constantly changing, and you need to stay up to date with the latest guidelines.
If you want our help, we’ve developed an audit to determine a website’s current state of accessibility and recommend common-sense next steps. Please reach out if you’d like to learn more.
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