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John T O'Farrell's Commentary On The Digital Space and Online Marketing

Website Accessibility: A Primer to the Landscape

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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

  • The act addresses organization that are non-governmental

  • Act 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

    • WCAG 2.1 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

  • 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

        • Case won by Gil

        • Winn Dixie has 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

Website Accessibility: Two Silver Linings