ADA Compliance and Website Accessibility Standards

October 21 2021

Website Accessability Sigmund - unsplash-4MoIpDcSlr4

By Chadwick Meyer

In the last few months clients have had a growing paranoia about a growing number of ADA lawsuits (Americans with Disabilities Act) for website accessability. There have been reports of "serial plaintiffs" (driven by profiteering lawyers) filing hundreds of lawsuits against small buisnesses in order to extort settlements. These lawsuits have generally not been filed in good faith by disabled persons truly prevented from accessing services (they could call to receive service if they wanted), most likely are not valid against most marketing focused websites, and most are likely not defensible in court (see below), but the fear alone urges businesses to settle, which prevents clear precedent from being established.

To be absolutely clear, Website Accessbility for disabled persons is very important. It's not only legally required (in some cases), it is morally correct, and it's also in the interest of every organization and business to provide services to all people equally.

But ADA compliance is a super complex issue. It's not clearly required for all websites a priori, i.e. theoretically (still undetermined by the laws and courts) only those providing a "service" online or with a "nexus" (connection) to a physical space.

Furthermore the standards themselves are very vague, the ADA does not specify rules like they do for physical buildings (e.g. dimensions of door width, ramps, etc). California courts seem to imply that it's enough to follow the Web Content Accessibility "Guidelines" but federal guidelines have not specified. And these guidelines are also very vague, leaving a lot of room for interpretations, e.g. how much contrast is "enough" for colorblind people, or which images need "alt tags" (if images are for visual reference only and not important for navigation or providing services), or how many missing labels constitutes a punishable violation.

And websites have thousands of unique interactive pieces, using hundreds of third party libraries, they must be responsive for thousands of devices, and display dynamic content produced by each business (who are themselves responsible for correctly naming/labeling their content and images for disabled individuals). And the layers of technology are not well understood by the legal system (or legislators that make laws) so enforcement is done ignorantly, without a sense of the complexity or costs. Thus the burden and cost for small businesses is much much higher proportionally.

Furthermore there does not exist a website or platform that is 100% ADA compliant, it's not possible because of the vagueness of the law and constantly evolving technology. Bigger companies have more resources to attempt to comply, and more importantly they have lawyers to defend them (which make themselves harder targets). And certainly no website platform will indemnify a client against a lawsuit, because lawsuits can happen whether or not a good faith effort is put in.

Consult a Lawyer

If you are concerned about ADA compliance (and you should be), you need to consult the advice of a lawyer. Be aware of course that lawyers are "risk averse" and will always tell you to avoid all risk (it costs them nothing to give a long list of recommendations, because you are the one that must pay to implement them). So you'll have to figure out what is "good enough" (what is legally required, what is morally right, and what is defensible in court and at what cost).

We Are Here to Help

If you need help, please schedule an hour paid consultation with our team so that we can help get you on the path to compliance. The first step is to migrate you to our 2.0 platform which is natively already more compliant (see below). Once the new website is setup, we can help you get it analyzed by a third party service and any well defined compliance issues that are due to failures of the platform will be done for free. But any that are more vague or custom design related, could result in the need for further customizations in your particular case.

The Spirit of the Law

The key to the ADA law is that disabled people have equal access to the same services as non disabled people. If your services are all provided in person or over the phone, they should have equal access. So the first step is to make sure the purpose of your website is clear (e.g. is it a service platform or digital marketing). And if you need to provide "services" (e.g. selling) you must ensure that these services are equally accessible to all people.

Website as a Marketing Tool

For most businesses and organizations the website is really a marketing tool or a digital advertisement intended to gather sales leads, and is not intended to provide services that substitute their core business services provided in person or on the phone (all the content, forms, search, tools, are only there for sales purposes, to attract visitors in order to convert leads). For example, the services provided by a Realtor, or a local business, or a church, are performed offline. Visitors to the website are not purchasing a product, all the content is free and intended for marketing purposes only, in contrast with sites like Domino's Pizza (recently sued for ADA compliance because visitors could not order a pizza) or a travel website where visitors can purchase tickets.

In many ways your website is like a graphic advertisement in a magazine, a blind person cannot see the ad, but no services are provided so magazine ads are not a violation of ADA. A website intended for marketing only is conceptually the same thing.

Talk to your lawyer to see if there is a way to classify the website as a "marketing" tool (and not a "service") and also you promote your availability for disabled people to call and talk to someone in person. e.g. by including a statement in the footer or header (like we do with GDPR compliance):

Our website is for marketing purposes only and is not intended to be used for any business services normally provided over the phone or in person. Any accessibility issues should be reported to us (xxx-xxx-xxxx) so we can immediately fix them and provide you any direct personal service required.

This complies with the spirit of the law (providing equal access to your services in person). The website is only intended for digital marketing and disabled persons can access your real services by calling or visiting in person.

Our Platform

Our 1.0 platform was built with the intention of being compliant with website accessibility standards. But it was built by a small team, many years ago, and since that time website standards and technology changed immensely. So there could be parts of the site that are not 100% easily accessible for disabled people.

In order to improve accessibility, we started building our 2.0 platform to address this issue (and others) in 2015. But we are a small team and that process has taken many years, and despite our best efforts we still have not fully launched (we are in private beta). This new platform implements modern Website Accessibility Standards. But there are some aspects still being completed and not yet audited for ADA compliance. However, it is our intention to make the platform as compliant with standards as possible. So any problems found will be addressed as quickly as our team can work to fix them.

Our Recommendations

Third Party Plugin

There are third party plugins that promise to make any website compliant. These could be added to your website instantly, e.g. https://accessibe.com

We have our doubts about the efficacy of this plugin, because some things are very complicated and a plugin can't automagically make everything accessible. And this third party company does not indemnify the client against the initiation of a lawsuit (which unscrupulous lawyers hope will result in a company paying to "settle" rather than paying a lawyer to fight in court). But installing this plugin could show that the client was "responsive" using an industry tool that promised to make the website compliant. This will not stop a frivolous lawsuit, and it's unclear with legal precedent whether or not it's "good enough", but it is an option with low costs.

Simplify and then Rebuild Compliant

If you are very concerned about a lawsuit, you can immediately (temporarily) downgrade the user experience for everyone, by making one simple landing page (a digital advertistement like startups often have) which promotes your brand, services, and contact information, but has no special functionality that would not be accessible to the disabled. This could be setup in a couple days. Then a more full site can be built out on our new 2.0 platform, and we can make sure that each new page/feature is ADA compliant with more time for testing before launching. On the new platform any non compliance issues will be fixed by our team for free (as quick as possible).

***

If you want to talk more about this, please contact our support team to arrange a paid consultation to discuss options.

Tags : ADA, compliance, lawsuits, legal, disabilities, 2.0, consultation

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