Website Accessibility: A Primer to the Landscape on the ADA's 25th Anniversary

Over the last few years digital marketers have slowly started to become aware of the Americans with Disability Act of 1990 as the number of lawsuits filed against organizations that have websites with no or little accessibility for disabled people grows. The suits have generally been successful with nearly all cases being settled out of court in favor of the plaintiff.

With a lot of moving parts and some confusion in the general landscape of website accessibility, I’ve assembled a primer for the digital marketer.  Below I cover what the ADA is, what the ADA is not, lawsuits about websites driven by the ADA, website accessibility standards (WCAG) and international accessibility standards. 

I close with some thoughts on why providing an accessible site is a decision with positive business benefits.

Americans with Disability Act of 1990 (ADA)

• Title III of this act deals with public accommodation and has been extended to include website accessibility
• Addresses organization that are non-governmental
• Does not provide any guidance on standards or requirements for accessibility
• Courts have been using the Word Wide Web Consortium (W3C) guidance on accessibility as the measurement standards for accessibility (is the current version of W3C’s accessibility guidance)

Rehabilitation Act of 1973

Section 508 of this act addresses accessibility for organizations that work directly with or take money from the Federal government. 

• Section 508 extends the act to website accessibility
• This act is often cited when website accessibility is the topic with many people not realizing there are two separate acts that address website usability
• Many organizations may think they are exempt from website accessibility by incorrectly framing the conversation around the Rehabilitation Act of 1973 when they should be framing it with the ADA Act of 1990

  ADA Website Lawsuits

Over the last few years lawsuits based on accessibility issues for websites has been on the increase

• In 2018 there were a total of 10,163 ADA lawsuits; of that number 2,250 (22%) were website lawsuits.
• The previous year, 2017, there were 7,663 total ADA lawsuits; of that number 814 (11%) were website lawsuits
• 2017 to 2018 saw an increase in website accessibility lawsuits of 64%
• 2019 projections are higher

Cottage Industry

• Commentary in the legal press have called out that a cottage industry has developed around suing organizations for violating the ADA
• Plaintiffs who have recently filed ADA suits are now also filing lawsuits in California under that state’s Fair Employment and Housing Act (FEHA)

ADA Lawsuits, the Courts and Trials

• Nearly no cases have been dismissed; if your organization has a suit filed against it, it’s not likely to be dismissed
• Only one case has gone to trial to date, Gil v Winn Dixie with the verdict in Gil's favor. Winn Dixie has the case on appeal (no expected date for a ruling has been announced)

Domino’s Pizza in Domino’s Pizza v. Guillermo Robles, after lower courts ruled the ADA applied to their website, filed a petition for a Writ of Certiorari hearing with the United States Supreme Court, asking it to rule on whether its website is required to comply with ADA or not.  The Supreme Court declined to hear this case and in October 2019, sent it back to the lower courts.

Nearly all cases are settled with fine or monetary damages paid.

• Settling a case with a plaintiff has not prevented a third party for filing a lawsuit for the same accessibility issue

Penalties

• Generally undisclosed but thought to be of significance not including legal fees

Responsibility for Third Parties

• Gil v Winn Dixie case found that websites are responsible for anything on the site if it is provided by a third party provided or not
• Third party responsibility is one item under review with the appeals court
• Industry thinking, as reflected in trade publications for third parties is “if it’s your content and your brand you are responsible for accessibility”

Word Wide Web Consortium’s WCAG

Word Wide Web Consortium (W3C) is the organization that sets the standards for how the Internet works

W3C created a set of standards called the Web Content Accessibility Guidelines (WCAG)

• Current version: WCAG 2.1

WCAG is the defacto accepted standard for ADA Title III compliance and is what is looked at when there is legal action taken

There are three levels of scoring accessibility within the WCAG: A, AA and AAA

• A is basic and bare minimum
• AA offers a good experience for all users and is the standard that needs to be obtained to protect from legal action
• AAA is fully accessible but provides a degraded user experience for those without disabilities

Countries and regions other than the United States

• The following list of countries and regions use WCAG as their standard for website accessibility.  Meeting the WCAG AA criteria should place your organization in compliance with all of them
• United Kingdom: Regulation BS 8878
• European Union:  European Accessibility Act (proposed)
• Canada: Canadian Human Rights Act of 1977
• Australia: Disability Discrimination Act 1992
• New Zealand Web Usability Standards 1.3:
• New Zealand at one time used WCAG as its sole standard however in July of 2019 modified its standard with input from the NZ Government Web Standards Reference Group and the Government Web Community

Website Accessibility: Two Silver Linings

While many organizations see this as cost, the enlightened digital marketer sees it as cloud with not one but two silver linings.

• The first in that you expand your market to include disabled people. Of course, there is real debate on whether the costs to be accessible don’t reap the returns to create a positive return on investment. However, if size of market is important, I am not sure everyone realizes visual impairment and blindness is expected to double in the United States, alone, by 2050
• The second is that what is good for accessibility is also good for search engine optimization (SEO).  Google loves accessible sites since the information is highly organized and a result easier to understand what the site is about.  It’s important to remember, the Googlebot has no eyes and is totally blind

This article originally appeared in AllThingsInteractive.com in November 2019