Table of Contents
The Federal Law: Americans with Disabilities Act (ADA)
As a general rule, Sec. 12182 (a) states, Prohibition of discrimination by public accommodations under Title III of the ADA:
No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.
Section. 12182 (b)(2)(A)(iii) also states:
a failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden;
This subsection leads to the Code of Federal Regulations (CFR) effective communication requirement under 28 CFR § 36.303(c)(1):
A public accommodation shall furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities. This includes an obligation to provide effective communication to companions who are individuals with disabilities.
Are You Required to Make Your Website ADA Compliant?
As the language clearly indicates, Title III of the Americans with Disabilities Act applies to places of public accommodation. But what is a place of public accommodation?
Section 12181. Definitions provides 12 categories with several of places of public accommodation.
(7) Public accommodation
The following private entities are considered public accommodations for purposes of this subchapter, if the operations of such entities affect commerce
(A) an inn, hotel, motel, or other place of lodging, except for an establishment located within a building that contains not more than five rooms for rent or hire and that is actually occupied by the proprietor of such establishment as the residence of such proprietor;
(B) a restaurant, bar, or other establishment serving food or drink;
(C) a motion picture house, theater, concert hall, stadium, or other place of exhibition entertainment;
(D) an auditorium, convention center, lecture hall, or other place of public gathering;
(E) a bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment;
(F) a laundromat, dry-cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a health care provider, hospital, or other service establishment;
(G) a terminal, depot, or other station used for specified public transportation;
(H) a museum, library, gallery, or other place of public display or collection;
(I) a park, zoo, amusement park, or other place of recreation;
(J) a nursery, elementary, secondary, undergraduate, or postgraduate private school, or other place of education;
(K) a day care center, senior citizen center, homeless shelter, food bank, adoption agency, or other social service center establishment; and
(L) a gymnasium, health spa, bowling alley, golf course, or other place of exercise or recreation.
Are You Exempt From Making Your Website ADA Compliant?
Many small businesses are hopeful that they will be exempt from ADA compliance.
The only named exemptions under Title III are religious organizations such as churches and private clubs.
And specific requirements must be met to qualify as a religious organization or private club. Charging membership/annual fees does not automatically mean the business is exempt.
One common misconception is that small businesses with less than 15 employees are exempt from ADA compliance. This originates from the 15 employees or more threshold from Title I of the ADA but does not apply to Title III.
I also have been asked multiple times whether the Americans with Disabilities Act applies to non-profit groups. Non-profits are also not exempt from the ADA.
For more information on whether the Americans with Disabilities Act applies to you, read the Businesses That Are Open to the Public post on ADA.gov.
DOJ Stance on Digital Accessibility
The DOJ is the regulatory and enforcement agency behind Title II and Title III of the ADA; the ADA is the DOJ’s domain of expertise and authority which means both federal and state courts are very receptive to the DOJ’s stance.
In 2022, the DOJ published Guidance on Web Accessibility and the ADA which was largely unhelpful but did reiterate the federal agency’s longstanding position:
Businesses and state and local governments have flexibility in how they comply with the ADA’s general requirements of nondiscrimination and effective communication. But they must comply with the ADA’s requirements.”
The Department of Justice does not have a regulation setting out detailed standards, but the Department’s longstanding interpretation of the general nondiscrimination and effective communication provisions applies to web accessibility.1
Businesses and state and local governments can currently choose how they will ensure that the programs, services, and goods they provide online are accessible to people with disabilities.
The important takeaway is that the DOJ’s stance is businesses have flexibility; they do not perfectly must comply with the ADA but they have flexibility in how they comply.
Compliance flexibility seems like a good thing until you realize that the ambiguity opens an advantage plaintiffs’ lawyers. They now have flexibility in determining whether a website arguably violates the Americans with Disabilities Act.
The actual legal standard for ADA compliance is the meaningful access standard.
The term “meaningful access,” as a legal standard comes from Alexander v. Choate, 469 U.S. 287, 301-302 (1985) where the court said that persons with disabilities are entitled under §504 of the Rehabilitation Act, to meaningful access to a State’s programs, benefits, and activities. Since the ADA and the Rehabilitation Act get interpreted the same way, that standard has carried over to the ADA.
Of course, when we ask what constitutes a meaningfully accessible website, we arrive back at a general standard where the technicalities can be argued.
The Web Content Accessibility Guidelines (WCAG) are technical standards for web accessibility that provide direction on how to make a website (or other web asset) accessible to people with disabilities.
Although WCAG is not the law, it is frequently referenced as a basis for determining whether or not a website is accessible. Some laws, including Section 508 of the Rehabilitation Act of 1973 and the Accessibility for Ontarians with Disabilities Act (AODA), have incorporated WCAG 2.0 AA into the law.
WCAG has four versions (1.0, 2.0, 2.1, 2.2) and three conformance levels (A, AA, AAA), with AA being the standard reference due to AAA’s strictness.
- Version 2.0, from 2008, is the foundational version, establishing a solid accessibility baseline.
- Version 2.1, released in 2018, incorporates essential mobile accessibility features.
- Version 2.2, the latest, was published in 2023.
Each new version of WCAG introduces additional success criteria, building upon the previous version’s accessibility requirements for conformance.
Success criteria can be viewed as specific actions to improve your website’s accessibility.
Some examples of success criteria include:
- 1.1.1 Non-text content
- 1.3.1 Info and Relationships
- 2.1.1 Keyboard
- 3.2.1 On Focus
- 4.1.2 Name, Role, Value
Many often overlook that what’s traditionally considered essential for accessibility conformance might be more accurately categorized as sufficient or advisory techniques.
This is because websites can conform to many success criteria in multiple ways.
Sufficient techniques are reliable ways to meet the success criteria.
For example, success criterion 2.4.1 Bypass Blocks is commonly associated with the skip navigation or skip to content link, but 2.4.1 can be satisfied with correctly structured headings or by having landmarks in place.
A mechanism is available to bypass blocks of content that are repeated on multiple Web pages.
Note that the only requirement is that there is a mechanism available to bypass blocks – 2.4.1 doesn’t necessitate what mechanism.
Advisory techniques are suggested ways to improve accessibility, but they aren’t sufficient for full conformance by themselves for a number of reasons.
For example, success criterion 1.4.4 Resize Text requires:
Except for captions and images of text, text can be resized without assistive technology up to 200 percent without loss of content or functionality.
An advisory technique for 1.4.4 (and 1.3.1) is to use CSS to control visual presentation of text.
Although insufficient for full conformance with 1.4.4, this will allow users to modify, via the user agent, the visual characteristics of the text to meet their requirement. Thus, it is a consideration to optimize for accessibility.
2.1 AA Checklist
Many people search of an ADA website compliance checklist when what they actually mean is a WCAG checklist. Here is a simple table with the summarized (and very condensed) requirements for each success criteria in WCAG 2.1 AA:
|1.1.1 Alt Text
|All images need a text alternative.
|1.2.1 Audio & Video Alternatives
|Provide transcripts for audio and video.
|1.2.2 Closed Captioning
|Closed captioning required for videos.
|1.2.3 Audio Description
|Audio description for key video info.
|1.2.4 Live Captions
|Closed captions for live presentations.
|1.2.5 Audio Description (AA)
|Audio descriptions required at AA level.
|1.3.1 Website Structure
|Use HTML for proper content structure.
|1.3.2 Meaningful Order
|Present content in a meaningful order.
|1.3.3 Sensory Characteristics
|Instructions should not rely on a single sensory ability.
|1.4.1 Use of Color
|Do not use color alone to convey information.
|1.4.2 Audio Control
|Audio content must be controllable.
|1.4.3 Color Contrast
|Ensure sufficient color contrast.
|1.4.4 Text Resize
|Text must be resizable up to 200%.
|1.4.5 Images of Text
|Avoid using images of text.
|2.1.1 Keyboard Only
|All functionality must be accessible by keyboard.
|2.1.2 No Keyboard Trap
|Ensure keyboard navigation is not trapped.
|2.2.1 Adjustable Time
|Time limits must be adjustable.
|2.2.2 Pause, Stop, Hide
|Control for moving content.
|2.3.1 Three Flashes or Below
|No content flashing more than three times per second.
|2.4.1 Bypass Blocks
|Provide mechanisms to bypass repeated blocks.
|2.4.2 Page Titles
|Use descriptive page titles.
|2.4.3 Focus Order
|Maintain logical focus order.
|2.4.4 Link Anchor Text
|Ensure links are clearly descriptive.
|2.4.5 Multiple Ways
|Provide multiple ways to access content.
|2.4.6 Descriptive Headings and Labels
|Use clear headings and labels.
|2.4.7 Focus Indicator
|Provide visible focus indicators.
|3.2.1 No Focus Change
|No automatic focus changes.
|3.2.2 No Input Change
|Inputs should not trigger automatic changes.
|3.2.3 Consistent Navigation
|Maintain consistent navigation.
|3.2.4 Consistent Identification
|Identify similar components consistently.
|3.3.1 Error Identification
|Clearly identify form errors.
These success criteria and many others cover critical aspects of web accessibility so we can ensure that people with various disabilities can access our website.
Most website owners find out about ADA compliance for websites through a demand letter or a lawsuit. The lucky ones find out from an industry peer who has already been sued. While the number of formally filed complaints in state and federal courts is in the low four-figures, it’s estimated that tens of thousands are settled privately before ever becoming public record.
Most litigation involves 25 plaintiffs law firms (and more lawyers are entering the space as of late 2023 and early 2024). Some of the most active law firms are:
- Mars Khaimov, PLLC
- Pacific Trial Attorneys, APC (Scott Ferrell)
- Stein Saks, LLC (Mark Rozenberg)
- Law Office Of Pelayo Duran, P.A.
- Manning Law, APC
- Gottlieb & Associates (Michael A. LaBollita)
- Shaked Law Group, P.C. (Dan Shaked)
- Mizrahi Kroub LLP
- Law Office of Noor A. Saab
Newer plaintiffs lawyer entrants include Glanzberg Tobia Law, P.C., Throndset & Michenfelder Law Office LLC, Marlon B. Baldomero, Esq., and Zeig Law Firm, LLC, per EcomBack.
These firms usually initiate litigation on behalf of a plaintiff who is blind or visually impaired. The general claims asserted typically revolve around existing accessibility issues on the website creating a barrier to access.
Following, these issues are tantamount to intentional discrimination on the part of the defendant website owner/operator. Thus, the law firm contends that the defendant is in violation of the law and their client is entitled to relief and/or damages.
Accessibility Issues Claimed
Plaintiffs law firms often apply the Web Content Accessibility Guidelines very strictly against websites, with technical non-conformance on a number of success criteria, opening the possibility of litigation.
The top three issues claimed in litigation involve:
- Missing alt text
- Missing form field labels
- Keyboard navigability
Many plaintiffs lawyers use automated accessibility scans to find issues. Popular scans used by lawyers include:
However, a growing trend is for plaintiffs lawyers to contract with accessibility experts to test websites and find issues beyond what automation can detect.
To learn how to find and fix the most commonly claimed issues in litigation, sign up for the ADA Compliance Course.
The bulk of ADA website compliance lawsuits take place in:
- New York
However, as of late 2023 and early 2024, we are seeing complaints emerging in other states such as Illinois, Pennsylvania, and New Jersey.
Both in state and federal court. New York federal courts are in the 2nd circuit, California federal courts are in the 3rd circuit, and Florida federal courts are in the 11th circuit.
Other Anti-Discrimination Laws
The Americans with Disabilities Act isn’t the only law that plaintiffs lawyers name as a cause of action. Other general anti-discrimination laws may come into play.
In California, the California Unruh Civil Rights Act is commonly named. In New York, the New York State Human Rights Law (NYSHRL) and New York City Human Rights Law (NYCHRL) are also frequently cited.
Also, as of July 1, 2024, the Colorado state accessibility law, HB21-1110 will come into effect.
The vast majority of cases are settled privately and the actual settlement amounts for ADA website lawsuits vary based on a number of factors including:
- Plaintiffs law firm
- Defendant revenue
- Defense attorney
Cases in New York typically have the highest settlement amounts. In general, ADA website litigation usually settles for between $5,000 and $20,000.
Some industries or business niches are more frequently targeted. Per the EcomBack Lawsuit Trends Report from 2023, here are the top 7 industries targeted and likely the most at risk:
- Lifestyle, Fashion, Clothing and Apparel
- Restaurant, Food, and Drink
- Medical, Health, Fitness
- Furniture and Home Decor
- Travel, Hotels and Hospitality
- Beauty, Skin and Body Care
- Retail and Consumer Goods
Even if your business does not fall under these categories, keep in mind that there are literally hundreds of complaints filed in court against companies and businesses and other industries. Also, there are likely thousands more entities who privately settle after receiving a demand letter.
One area of confusion is whether a specific platform can help you prevent litigation. For example, are Shopify websites ADA compliant?
The answer is no.
Wix showcases accessibility features to help improve accessibility, but other than this I have seen no website builders embrace accessibility. Moreover, even with accessibility features, you can easily introduce accessibility issues when building a website.
Also, per the EcomBack Report, here are the top technologies used for websites that were sued:
- Custom Coded
- Salesforce Commerce Cloud
Note that Squarespace actually has limitations to what you can remediate which can prevent certain accessibility issues from being addressed. Many prospective clients use Squarespace and we alert them that while we can remediate “90%” of accessibility issues, there are still important ones that we cannot get to because we do not have full access to code.
How to Make Your Website ADA Compliant
The best practices for ADA website compliance are 1) WCAG 2.1 AA conformance and 2) accessibility statement.
When clients hire me as their ADA website compliance consultant, I emphasize the importance of approaching website accessibility strategically. There is no reason to not work on the issues that are most likely to lead to a demand letter or lawsuit first. Working from that line of thinking, I generally recommend starting with the issue most likely to lead to a lawsuit (missing alt text) and then work towards the accessibility issues that are less commonly claimed.
The reason I say generally is because there are some less commonly claimed accessibility issues that can be fixed in literally a few seconds so you should take care of these first.
I created an entire course, the ADA Compliance Course, around this strategic approach.
With that first step in mind, let’s cover how to make a website fully WCAG conformant.
Website Accessibility Audit
An audit is a formal, manual evaluation of a website’s accessibility conducted by a technical accessibility expert. During an audit, a website is being graded against the Web Content Accessibility Guidelines and any accessibility issues are documented and included in the audit report.
While scans and other tools are commonly used during the audit process, the audit is always the result of manual review.
During an audit, one or more technical experts will inspect elements, content, and code. Experts will also interact with and test the website using a keyboard and at least one screen reader.
Also, although an audit, optimally, tells the website owner all accessibility issues that reside on the website, no issues are fixed as the result of an audit.
Audits usually cost between $2,500 and $7,500 for most websites.
The price will depend on several factors including:
- number of pages within scope
- state of accessibility
- complexity of the website
- environment combinations
Environments are usually kept to a minimum to keep cost lower (otherwise you have to repeat the audit process for multiple different environments which takes more time). However, the more traffic a website receives, the more environments should be involved.
For example, a website like Amazon should have audits conducted under as many environment combinations as possible because there are so many different users visiting Amazon.com.
We would want to include all of the most popular browsers including Chrome, FireFox, Safari, and Edge. We’d also want to test with all of the popular screen readers including VoiceOver, NVDA, and JAWS.
Website Accessibility Remediation
Remediation is the process of fixing accessibility issues on a website. There are two types of remediation: code remediation and content remediation.
For service providers like Accessible.org (my small business) that offer remediation services, code remediation is what is automatically included and then content remediation is optional.
The good news is content remediation consists of fixing images, video, audio, text, and documents and, other than PDFs and some video, these are mostly fixes that can be taken care of by a digital team member who is non-technical.
Issues that involve code are often technically complex and require someone with development experience to resolve the issue. For example, most web designers will not know when and how to add appropriate ARIA roles and attributes. ARIA stands for Accessible Rich Internet Applications. This is why it’s so helpful to have code remediation taken care of.
Remediation costs usually start at $2,500. Most accessibility companies do not offer remediation services for fear of liability.
Sometimes it’s more efficient and more effective to completely start over and rebuild a website.
Of course, it’s always best to audit post-remediation to ensure that all issues have been resolved and no oversights or errors have been made. This is referred to as the re-audit phase.
If conducted by the original auditing provider, a re-audit is often a fraction of the cost of the original audit.
User testing is the testing of a website or other digital asset conducted by an accessibility professional with one or more disabilities. The testing is conducted under formal settings and usually includes the use of assistive technology such as a screen reader or voice dictation software.
Although similar in that a primary objective is to uncover any accessibility issues, user testing is distinct from an audit in that user testing is much more concerned with a user’s practical experience vs. technical instances of non-conformance with WCAG.
User testing will result in some form of documentation. This may be a written report and/or a recording of the user testing session.
Re-audits and user testing are both recommended additions to any website accessibility project because they act as a multi-tier net to help filter out and catch accessibility issues that were not initially detected.
ADA Website Compliance Products
When consulting with clients, the conversation usually leads to software in some form or fashion:
- Should I buy monitoring?
- Do I need to purchase this ADA compliance checker?
- Will this widget protect me from lawsuits?
People initially think they need to buy some thing rather than services or training.
The problem isn’t that that “checkers” or automated scans aren’t useful, it’s that the value can be had for free. You can use a scan right now to scan your page in seconds. On top of that, all of the extras like reporting, dashboards, charts, etc. provide little to no value.
Let’s go over some of the problems with the main products for sale in the website accessibility space.
Accessibility overlay widgets are marketed as “solutions” for making your website ADA compliant and/or accessible, but the widget sellers are known for making false claims (e.g., the widgets prevent lawsuits).
When a user activates settings, overlay widgets can apply surface-level changes such as zoom, color contrast, highlights, and font modifications. However, these modifications are superficial adjustments that lay over the existing website and don’t fundamentally fix accessibility. True accessibility requires manual code and content remediation, which these widgets cannot provide.
Besides the overlay widget, there is another improved category of overlays referred to as a custom overlay.
Once the accessible version of the website is “enabled”, most accessibility issues are fixed and a screen reader user should be able to use the website. Still, even a custom overlay will not be able to “fix” certain accessibility issues.
Another limitation is it is very easy to break the custom overlay when any updates are made to the website.
Level Access has discontinued use of a custom overlay, but another accessibility company, Usablenet, still continues to sell its custom overlay, Usablenet Assistive.
Also note that plaintiffs lawyers have continually disregarded any overlays – custom or otherwise – in lawsuits.
ADA Website Compliance Resources
Beyond the accessibility services offered at Accessible.org, I have created several courses to help website owners at ADACompliance.net including the ADA Compliance Course, the WCAG Course, Audits 101, and WP Accessibility (for WordPress users).
The WCAG Course explains every single requirement in the Web Content Accessibility Guidelines in plain English. I provide summaries, illustrations, and even code examples of what each WCAG success criterion is asking for. There are video and text explanations for each lesson and a downloadable Excel spreadsheet WCAG checklist is provided inside the course.
I cover all success criteria for WCAG 2.0 AA, 2.1 AA, and 2.2 AA.
ADA Compliance Course
The ADA Compliance Course provides step-by-step instructions on exactly how to approach making your website ADA compliant so that you lower your risk of a lawsuit as you improve accessibility.
Audits 101 teaches you how to conduct a basic website accessibility audit. I talk about creating a report, audit methodologies, and how to use a screen reader to test.
WP Accessibility explains improving your website’s accessibility through the lens of the WordPress dashboard and various WordPress settings. Of course, the general WCAG success criteria always apply regardless of the CSM or platform you use, I only discuss accessibility specific to WordPress in this training.
When you first get started researching this space, it can seem overwhelming. The people selling you on digital accessibility are saying different things, they’re conflating terms, and they’re even trying to sell you on the confusion: this is too hard, “accessibility is a journey”, the law is changing, etc.
While there are several aspects you need to learn about, when you eventually get to the essence of what you need, it comes down to two things: WCAG conformance and publishing an accessibility statement.
I recommend you hire a reputable service provider to start with an audit and remediation and then train your digital team so that they can become proficient in accessibility and you no longer need to outsource the work.
Learn more about me, Kris Rivenburgh.