The ADA Checklist: 2019 – 2020 Compliance Guidelines to Make Your Website Accessible

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This overview/guide takes 8 minutes to read.

WCAG 2.0 AA is the currently recognized global technical standard for web accessibility. In the United States, it is not the law but it is frequently cited to as a reference for how to make your website accessible by courts.

I created a very concise WCAG 2.0 AA outline (this is WCAG condensed into a bullet point checklist) that’s a tremendous help for beginners.

Legal Compliance vs. Accessibility

ADA website compliance and web accessibility are two terms that are used interchangeably but they are distinct from one another.

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 offerings accessible (website, apps, documents, presentations, etc.) or how accessible your offerings are.

Again, WCAG is frequently cited by U.S. courts but it is not the law – 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.

Practically, what’s most important in terms of preventing lawsuits is getting your WAVE errors down to 0.  WAVE is 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.

The new WCAG 2.1 guidelines (released in June 2018) build on the foundation that is 2.0; they extend upon the existing guidelines and success criterion.

2.1 is about enhancing and optimizing your accessibility, particularly on mobile but 2.0 AA is the standard I recommend you focus on.  2.0 AA conformance puts you in perfect shape legally – and there’s a lot of work to meet 2.0 by itself and 2.1 doesn’t undo 2.0 but merely builds upon it.

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Legal Best Practices

By way of some consent decrees (basically settlements) entered into by the Department of Justice (DOJ) and private companies 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
  • Adopt 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 see all digital accessibility is beneficial.

The Law

If you want to get technical, there is no black letter law that says websites of private entities must be ADA compliant (ADA refers to the Americans with Disabilities Act).  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).

As an attorney, I always advocate what I call “legal prevention” which means that you avoid legal entanglement when at all possible.  Of course, since there is no actual law on the books requiring accessibility of websites of private entities, we have a great technical argument but that’s law school theory-based stuff.  In the real world, there’s a real expense to defending against ADA Website Compliance claims.

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 required government agencies to make electronic and information technology (AKA 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 the WCAG 2.0 AA guidelines as standards for website accessibility.  Click here to see 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.

I highly recommend small businesses, companies, corporations, organizations, etc. to take the proactive approach to web compliance and get started.

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?

Quick answer:

The low cost of an audit and remediation from an agency would be $2,500 – and that’s if your website is fairly simple.

More than likely you’ll fall into the $5,000 – $12,500 range for an audit and remediation.

It really depends based on the complexity of your website and who you hire to address accessibility.

What are the prices for products/services?

You can get a great idea on the cost of web accessibility services available at my company website, Accessible.org.

Two of the biggest spending advertisers in this space are AudioEye and Accessibe.com.

AudioEye automated software and manual remediation probably starts at $6,000 – $10,000 a year.  That’s a recurring cost.  And notice I said starts at.  Price varies based on website.  Trained live accessible phone, chat, and email support included.

Accessibe automated software starts at $490 annually.  This is not a viable route for accessibility as I explain in my website accessibility toolbars article.

For mid tier websites like small credit unions, banks, hotels, restaurants, etc. you can expect a bill of about $10,000 – $50,000+.  Financial institutions can expect to pay more simply because of the security involved and the number of forms used.  Restaurants are going to pay on the lower end.

What about automated scanning tools?

Accessibility checkers are a nifty way of determining some of the ways your website is lacking.  I recommend trying a few different scans to get a solid feel of where you need improvement.

WAVE is the most popular tool.

Tenon.io by Karl Groves is a premium automated checker but it’s a good one and cost effective.

I always advise not to pay for scanning services and reports from vendors.  These can be extremely expensive (thousands of dollars) and not provide much more information than the free scans.

The “More Accessible” Trap

Look out for things (WordPress accessibility plugins, WP themes, services, etc.) that say they are “more accessible”.

WordPress 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.  Typically you’ll get a boost of accessible elements on your website but buying an accessible theme – premium or free – will not take care of everything for you.

This about 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.

When researching products or services, you need to find out exactly what they do and what criteria they make your website meet.

When it comes to accessibility, demand specificity.  Almost every vendor will say they meet WCAG 2.0 but you need to find out exactly how they do and do not.  And it’s okay that they don’t.  Virtually zero vendors can cross off every bullet point, but you need to be thorough so you know exactly where you’re deficient so you can shore that up.

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.

Here’s another example I personally experienced:

I was specifically searching for an accessible live chat plugin for ADABook.com and I stumbled upon Olark.com.  Olark claims accessibility with a specific page but then backtracks with very tepid language:

“We aim to adhere to the WCAG 2.0 accessibility guidelines for the code that our customers install on their websites. Our code is written so that the chatbox is navigable by keyboard using screen reader software.”

That’s nice but keyboard navigability is just one bullet point.  Before I install a third party plugin or widget, I want to know, are you completely accessible or are you not.  I contacted their support via email and live chat.  Here is my email and Olark’s reply:

Hi,

Having fully accessible live chat is critical for me. I choose [sic] Olark live chat because Olark is one of the few who specifically embraces accessibility but after installing the Olark plugin today and reading through the policy found here:

https://www.olark.com/help/accessibility,

I wanted to learn more about how Olark chat is accessible beyond keyboard navigation. Can you tell me specifically what WCAG 2.0 success criterion Olark has satisfied?

Thank You,

Kris

Hi Kris,

Unfortunately, I don’t have that documentation to share. I can tell you that we’ve implemented the chatbox in a way that it’s accessible to a screen reader and we’ve enabled a high-contrast mode for the agent console, so far. Accessibility is important to us, but it will be something we’re continually working on.
Are there any specific features you’d like us to put in requests for? I’d be happy to get those requests in for you!

Thanks,
Rhi

By the way, this is not to take points off for Olark because they were the ONLY live chat plugin I saw that even talked about accessibility.  Chances are 80% of live chat plugins haven’t even thought of accessibility.

Hire a Web Accessibility Consultant

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If you need help with how to approach accessibility and organize efforts for your organization, I’m available for consultation.

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

If you have a question, you are welcome to email me at kris@adabook.com.