ADA and Your Website: The Moving Target of Compliance

Understanding accessibility hurdles and how to address them

Enacted in 1990, Title III of the Americans with Disabilities Act or ADA addressed the need to remove barriers to access physical spaces that are generally open to the public. At that time, the ADA did not consider digital spaces. Since then the explosion of the internet has posed a challenge to access for individuals with disabilities. And while there have been affirmations from the Dept. of Justice regarding its stance that the ADA applies to websites, specifics have yet to be codified into law. As a result, the standards for compliance in use today were developed by a collaboration of individuals and organizations. These standards are known as the WCAG or WEB Content Accessibility Guidelines.

Since 2017 the number of lawsuits arising out of ADA inaccessibility complaints has steadily grown. On a national level, Title III limits the remedy for a successful complaint to reimbursement of legal fees and the requirement that the defendant fix the problem. However, some states have additional laws that allow for monetary compensation to plaintiffs, resulting in a flurry of cases in states such as New York and California. Known as “surf by” suits, these actions are often brought by a single plaintiff (claiming to be a “tester”) against a number of companies. The payout for settling the suit is usually less than going to court, so website owners often fork over the dollars to avoid the hassle and potential for further costs.

While no one is a fan of frivolous litigation, it must be noted that the web has often posed an access challenge to people with disabilities and it’s important we all recognize and work to remedy this. In an effort to provide clarity and relief for website owners, legislation was introduced into congress in October of 2020. Known as “The Online Accessibility Act,” the measure will create a new title (IV) of the ADA that will specifically address accessibility of websites and mobile applications. The proposal will lay out the requirements for compliance as well as provide guidance regarding how claims of violations are evaluated. Hopefully this effort will make it easier for website owners to know they are providing appropriate accommodations and relieve the concern about lawsuits.

In the meantime there are steps you can take to ensure that your website meets standards and is usable by folks with disabilities. Some of these are free (only requiring ongoing vigilance) while others are paid services.

1. Evaluate where you stand and do some basic groundwork:
   • Develop an accessibility statement to affirm your commitment to your users.
   • Add a text enlarger and translator (free versions available)
   • Familiarize yourself with the WCAG guidelines and how to meet them.
   • There are a number of tools you can use to check how your website measures up. The WAVE Evaluation Tool allows you to paste your site url into an open text box and get a report that provides details on errors and where they are located. You then have to make the fixes.
   • Avoid jargon and use acronyms with care, remember not everyone has a college reading level.
2. Establish ongoing practices:
   • Ensure that there is alt text added to photos.
   • Ensure that documents are machine-readable. Convert documents from text to pdf (i.e. do a “save as” for Word documents) rather than scanning the printed document as a scan is not machine-readable.
3. Purchase and install an accessibility tool that maintains the compliance of your website.
   • There are a few services out there now that can be added to your site and will do the work for you. We currently use a product called Accessibe, which is an AI based software that is embedded on your site and works in the background to maintain accessibility and provide tools to disabled users as needed.
4. Questions? Call us. We can walk you through your options.

Resources used in this article:

• Brands - Noncompliant DTC Websites Are a Hot Spot for ADA Lawsuits - Lexology.com
• Proposed Bipartisan Legislation Introduced to Address Website Accessibility Lawsuits -JDSupra
• Surfin’ USA: Website Accessibility Lawsuits are Alive And Well Under The ADA – Fisher Phillips