To avoid an ADA website compliance demand letter or lawsuit, here are the top three best practices for 2021:
- Have your website or app manually audited using WCAG 2.0 AA or 2.1 AA standards
- Remediate or fix your website to address the issues found in your audit
- Create and publish an accessibility policy page that states your commitment and demonstrates that commitment by outlining steps taken
Here are some quick bullet points website owners/consumers should be aware of:
- 15 employees threshold for Title III ADA compliance is a myth
- Don’t buy overlay widgets – they don’t make your website accessible
- No one is immune from demand letters including small businesses (e.g., I’ve seen bloggers get sued)
- You can potentially be sued in any state because websites are available everywhere
This article is way too long for the ADA website compliance overview you’re looking for. As such, I’m editing it, but, while I’m working on finishing it, here’s a general overview of the legal landscape.
The Americans with Disabilities Act (ADA) does not formally state that websites, apps, etc. must be accessible. The spirit of the ADA, yes, but the ADA was signed into law well before the Internet became a fixture in our lives.
The Department of Justice has entered into private settlements that required accessibility of websites and mobile apps and plaintiffs’ law firms saw that trend and began filing lawsuits over the past five years with increasing success.
Courts have overwhelmingly ruled that, yes, websites can be places of public accommodation and if they are inaccessible, it can be a violation of Title III of the ADA.
Because of this, a plaintiffs’ lawyer cottage industry has merged where some law firms file as many website inaccessibility cases as possible.
The Web Content Accessibility Guidelines are not the law, nor have they been formally incorporated into U.S. law for private entities but they are continually referenced by U.S. courts and were referenced by the DOJ before Trump so it’s best practice to make your digital assets conform with WCAG 2.1 AA to avoid litigation.
And with that, we’ll flow into the technical standards section from my original article.
So how do you make your website, app, etc. accessible?
WCAG 2.0 AA and 2.1 AA are internationally recognized technical standards for web accessibility. For private entities in the United States, WCAG is not incorporated into the ADA (there is no formal federal prescription) but WCAG is frequently cited to as a reference for how to make your website accessible by courts.
Moreover, the DOJ has mandated WCAG conformance in its private enforcement actions during the Obama administration.
WCAG 2.1 AA adds 12 updated success criteria (think of these as to-do items) that work on top of 2.0. Stated another way, 2.1 includes all of the success criteria in 2.0 + 12 newer bullet points.
WCAG stands for Web Content Accessibility Guidelines. Think of WCAG as the “what to do” stage in your process of becoming accessible.
Title II Website Accessibility Standards
Although Title II of the ADA only governs state and local governments, there are a Title II Best Practices Tool Kit and Website Accessibility Checklist that outline what should be the legal standard for website accessibility if we require web accessibility of private entities under Title III.
These documents mark the closest thing to formal legal guidance for ADA compliance we have.
The deficiency is they’re extremely dated (2007). The recommendations are still good but there are dozens more accessibility issues to consider which may be why WCAG has frequently been the technical standard referenced.
Back to WCAG, the links above will immediately get you to my quick bullet point checklists and larger, more in-depth guides.
The rest of this post will delve into the legal side of compliance and the practical aspect of making your website accessible. Here are the highlights:
- How to legally ace accessibility (for larger entities)
- The legal landscape
- 15 employees myth
- Estimated cost of accessibility
- Evaluating products and services
Legal Compliance vs. Accessibility
ADA website compliance and web accessibility are two terms that are closely related but distinct.
ADA stands for the Americans with Disabilities Act which prohibits discrimination on the basis of disability. Courts are construing Title III of the ADA to mean that websites must be accessible. Thus, with ADA website compliance, we’re referring to the law.
Web accessibility refers to making your digital assets accessible (website, apps, documents, software, presentations, etc.) or how accessible your offerings are.
The Web Content Accessibility Guidelines (WCAG) are the standards that we use to ensure our websites are accessible.
WCAG is not the law for private entities in the U.S. but, optimally, your website will meet all WCAG success criteria.
WCAG is frequently referenced by U.S. courts and the DOJ but just because you don’t technically meet every last success criterion under WCAG 2.0 AA doesn’t mean your website is in violation of the ADA. In fact, multiple authorities have stated that we have flexibility in how we make our websites accessible.
However, as most cases settle and never reach the merits of the court room, I recommend trying to conform to all WCAG 2.1 AA success criteria.
Practically, in terms of preventing lawsuits, it’s extremely important to get your WAVE errors down to 0. WAVE is an automated accessibility checker that you can add as a browser extension that shows accessibility errors and alerts on a website. Is it is commonly used by plaintiffs’ law firms as the basis for claims.
Legal Best Practices
By way of some consent decrees (basically settlements) entered into by the Department of Justice (DOJ) and private entities found to have inaccessible websites by the DOJ, here are some best practices as called for by the DOJ:
- Appoint a web accessibility coordinator
- Hire a qualified, independent consultant
- Conduct web accessibility training twice a year
- Create an accessibility policy page
- Invite and solicit feedback
For smaller businesses and organizations, the cost won’t make sense to have a web accessibility coordinator or extensive training but for larger entities such as corporations, appointing one individual to oversee all digital accessibility is beneficial.
If you want to get technical, there is no black letter law that explicitly says websites of private entities must be ADA compliant. However, that’s not a debate you want to have in U.S. district court (by then you’ve already lost money and expended tremendous time and energy).
Title III of the ADA applies to private entities that are places of public accommodation. Places of public accommodation are generally those which fall under 12 categories set out in Title III.
This means organizations, non-profits, businesses (even just sole proprietors and entrepreneurs), companies, and large corporations are subject to the ADA.
You have have heard of Section 508 and Section 504 in the digital accessibility discussion. Here’s the story with 508 and 504:
Section 508 is an amendment (1998) to the Rehabilitation Act that requires government agencies to make electronic and information technology (including websites) accessible to those with disabilities. Section 504 takes 508 a step further by requiring accessibility of recipients of federal funding.
Back to the ADA.
The ADA prohibits discrimination on the basis of disability and says that places of public accommodation (including private commercial enterprises) need to make accommodations for the disabled (42 U.S.C. § 12182). Importantly, a place of public accommodation, per 42 U.S.C. § 12181(7), amounts to a privately operated facility whose operations affect commerce. However, since the ADA came pre Internet era, the ADA didn’t contemplate or mention websites or apps.
In 2010, the DOJ issued an Advanced Notice of Proposed Rulemaking (ANPRM) called the Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of State and Local Government Entities and Public Accommodations. An ANPRM is not law but a published notice in the Federal Register used by an agency to feel out its proposal and get feedback/comments before making it a rule; It’s a prudent move by federal agencies to try and get everything right before making a law.
The DOJ’s 2010 ANPRM made it clear that a rule for web accessibility was coming and asked whether WCAG 2.0 AA success criterion should be used or whether the existing 508 standards were best.
Although no formal rule was published, in March of 2014, the DOJ began entering consent decrees (basically settlements) with private companies using WCAG 2.0 AA as the standard for website accessibility. Here is the first consent decree against HR Block.
Piggybacking on these consent decrees, private law firms have been increasingly (and ever more aggressively) sending demand letters to corporations (e.g. Amazon, Target, Hershey’s, Bank of America, Bed Bath & Beyond, Hulu, Charles Schwab, Safeway, CNN, etc.) threatening lawsuit if demands weren’t met. Most companies choose to settle vs. a legal battle but some including Dominos Pizza and Winn-Dixie have gone all the way to litigation.
In Robles v. Dominos Pizza LLC (Case No. 42 CV 16-06599 SJO (C.D. Cal. Mar. 20, 2017)), a federal court in California dismissed a class action lawsuit against Dominos, accepting the defandants due process defense. In a nutshell, the court found Dominos does have to make accessibility accommodations but because the plaintiff was trying to hold them to technical standards that weren’t promulgated by law, the case was dismissed.
In the landmark Carlos Gil v. Winn-Dixie Stores, Inc., Civil Action No. 16–23020 (S.D. Fla.) (first ADA website compliance case to go to trial), U.S. District Judge Robert Scola ruled against Winn-Dixie, finding that their website was indeed a place of public accommodation and that WCAG 2.0 guidelines were the de facto standard.
With US District Courts making incongruent decisions without actual law, the DOJ needed to step up and lay down formal regulations.
The Department of Justice was set to announce formal regulations for ADA website compliance in 2018 but those plans were scrapped when the Trump DOJ took over and nixed the Obama administration DOJ’s plans.
This is where the current legal situation lies.
Most corporate entities and companies are settling in non-public settlements. Plaintiff’s attorneys and law firms have swarmed like locusts in attacking the deepest pockets they can threaten.
These very real threats have lead to a whole new niche industry with more and more plaintiffs’ lawyers joining the fray. This, in turn, has led to smaller entities – including sole proprietors – getting hit with demand letters.
I highly recommend small businesses, companies, corporations, organizations, etc. take a proactive approach to web compliance and get started.
Lawsuit Note: California, New York, and Florida are where most web disability discrimination lawsuits are filed. In 2019 and 2020, California and New York state courts have experienced a surge in filings under their respective state anti-discrimination laws, the Unruh Act in California and the New York State/City Human Rights Law.
These laws run parallel to the Americans with Disabilities Act but provide a way for plaintiffs to recover damages in state court unlike the ADA.
The 15 Employees ADA Myth
I get this question a lot:
Does the ADA apply to me if I have less than 15 employees?
Since courts are now considering websites as places of public accommodation, you can absolutely fall under Title III of the Americans with Disabilities Act.
The 15 employees threshold refers to Title I of the ADA which speaks to discrimination in employment. Basically, with Title I, with respect to employment discrimination, you must be ADA compliant if you have 15 or more employees.
However, you can have fewer than 15 employees and still fall under Title III of the ADA as a place of public accommodation because Title I and Title III of the ADA are entirely separate and regulate two different areas of discrimination: one in regards to employment and the other in regards to dealing with the general public.
Instead of a website, let’s imagine you own an Italian restaurant in New York. At your restaurant, you have 14 employees on staff.
Because you have less than 15 employees, do you avoid the ADA and requirements to make your restaurant accessible (e.g. entry width specifications, wheel chair accessibility, etc.)?
You won’t fall under the Title I requirements of employment discrimination but you will fall under Title III requirements because your establishment would be considered a place of public accommodation open to the general public.
So as far as websites go, you don’t need to have 15 employees to be subject to the ADA.
For further guidance in reducing exposure to lawsuit and becoming ADA compliant, The ADA Book (available at ADABook.com) is a tremendous resource (written by me).
How much does it cost to make your website accessible?
There are three purchases I recommended in my best practices list above. Let’s go over each.
An audit is going to identify all of the accessibility issues on your website per WCAG 2.0 or 2.1 AA.
When you hire someone for an independent audit, make absolutely sure that you’re getting back a manual audit and not simply a report of an automated scan.
You can get automated scan results for free by installing a browser extension like WAVE or AXE Core.
A full manual audit will typically cost between $1,200 and $12,000.
The price depends on how many unique page layouts your website has, how complex or dynamic it is, and the current state of accessibility (does it have a lot of issues or not many).
Remediation means the actual fixing of a website to be accessible.
With remediation, an agency will make all the updates to your site as called for by the audit. If you have a skilled and knowledgeable developer, you can do this yourself – and, for many clients, I recommend taking this approach as it can save a lot of money.
If the website is super simple or there isn’t much to correct, remediation will be fairly inexpensive, maybe as cheap as $500.
However, usually, the cost of remediating a website is $5,000+.
Restaurant, hotel, and bank websites can expect to pay more because their websites are more dynamic in nature vs. websites that are static.
Although accessibility policy pages do not make a website accessible, I highly-highly recommend them because plaintiffs’ lawyers continually call for them in their demand letters and lawsuits and as part of settlements.
A good policy will talk about your commitment to accessibility and display your past and ongoing efforts towards accessibility.
What are the prices for products/services?
With website accessibility, price definitely should not be your sole criteria in deciding what service provider to choose.
Because there are many providers who will charge significantly less upfront (or even as a one-time charge) but you’ll end up getting little to nothing of material substance in return.
As a small business owner, I’d much rather pay an upfront cost of $15,000 for a one-time audit and remediation than pay $500 and install a worthless overlay that still leaves me completely vulnerable to a lawsuit.
There are several companies that offer services (eSSENTIAL Accessibility, WebAIM, Deque, Paciello Group, UsableNet, Tenon, and Level Access). An easy way to filter through the field is by those who offer automated vs. manual solutions.
Choosing a vendor that is rooted in automation as a complete or near complete solution is a mistake.
Automated products are fine but they should acknowledge that they’re not a complete solution. If any vendor pushes automation or software for full or near ADA compliance, 508 compliance, WCAG 2.0 AA or 2.1 conformance, etc. then that’s a great indicator that you’ll want to stay away.
Other than re-testing or conducting annual or semi-annual audits, you won’t need a subscription service to make your digital assets accessible.
Corporate accounts will be different if they have ever-changing websites, new roll-outs, multiple apps, etc. In that case, an enterprise solution comes into play.
But for a small, mostly static website, think about it, if you successfully audit and remediate your website, why would you need to continually pay for an accessibility subscription unless you completely overhaul your website?
Many small businesses are tempted by the “automatic” overlay (clickable toolbar menu pop-up) path because it’s relatively cheap and fast.
Overlay widgets are nearly worthless, whether you pay $1 or $500 for them. I always advise clients against them. Some clients think they help with preventing a lawsuit but as of March 2020, lawsuits are popping up where websites with toolbar overlays are getting sued (no surprise here – this was inevitable).
When you research products and services, it’s common to see a lot of false social proof: glowing testimonials from users with disabilities, 5-star reviews, endorsements from marketing influencers, and logos of Fortune 500 companies who are clients.
The testimonials are carefully curated.
The 5-star reviews are usually from affiliates who are promoting the product to get a commission.
What about automated scanning tools?
Accessibility checkers are a great way of determining some of the accessibility issues your website has. I recommend trying a few different scans to get a solid feel of where you need improvement.
WAVE is by far the most popular tool. It’s free.
AXE Core is another popular free browser extension.
Tenon.io by Karl Groves is a premium automated checker but it’s a good one and cost effective.
Keep in mind that these scans cannot catch all of the accessibility issues on a web page. In fact, depending on the page elements, they only detect about 1/3 of accessibility issues.
This isn’t a shortcoming, it’s just a reflection of the reality that website accessibility cannot be fully automated.
Again, be careful when you hire an agency for an audit, that they’re manually going through your website and all of its primary page layouts. An automated scan should only be a supplement to an audit, not the full audit.
The “More Accessible” Trap
Look out for things (WordPress accessibility plugins, Shopify plugins, WP themes, services, etc.) that say they are “more accessible”.
WordPress and Shopify themes (and themes for other CMS platforms like Drupal) commonly have the generic “more accessible” and “WCAG 2.0” tags attached to them but you have to be extremely careful about buying them because these are more aspirational claims than reality.
Think of the phrase “more accessible” – what does that even mean?
It can mean anything.
It can mean one accessibility component is addressed or many have – we don’t know.
For example, WIX and Square Space (online website creation software) hedge on whether their websites are accessible. I actually reviewed SquareSpace accessibility and I don’t see how you can make a website fully in conformance with WCAG on their platform.
The takeaway here is what when you’re sourcing third-party digital offerings such as website builders or integrations (e.g. live chat, social streams, etc.), vet your vendor for accessibility and WCAG conformance.
If you see the “more accessible” song start to play, weigh the risk of moving forward.
Web Accessibility Consultants
If you need help with how to approach accessibility and organize efforts for your organization, a consultant can fast track your efforts.
Not only are the optics of hiring an independent consultant (the DOJ actually stipulates in multiple settlement agreements that companies hire a consultant as part of the settlement so it looks good to have on record that you hired one) good, there are several practical benefits. A consultant can:
- Perform a manual audit on your website
- Create a web accessibility plan
- Help you deal with vendors, evaluate products and services
- Educate your company on how to be accessible
- Relay status and next steps to executives, your coordinator
- Convey what needs to be done to web developers
- Institute a training program for your coordinator, web accessibility team
- Alert you of changes in accessibility, new best practices
- Answer your questions
- Conduct annual audits
In a Nutshell
In sum, there is no actual law that mandates web accessibility for private entities in the United States, but all of the legal momentum and resulting lawsuits requires your make your website, app, PDFs, etc. accessible.
The best reference on how to make your website accessible is WCAG. WCAG is difficult to get through so you will probably want a plain English explanation. You can get my 2.0 and 2.1 guides for free by subscribing to Accessible.org.
As a website owner, it’s important that you have a feel for both the technical and legal aspects to web accessibility as you’re ultimately responsible for your website’s state of accessibility.
If you have any questions about ADA compliance/accessibility, you are welcome to email me at email@example.com.