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)
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
Commentary in the legal press have called out that a cottage industry has developed around suing organizations for violating the ADA
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
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
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)
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
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.