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 statement that states and demonstrates your commitment to accessibility
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
Summary
This article is the ADA website compliance overview you’re looking for but it’s lengthy (8 minutes reading time). Let’s start with a quick 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 says, 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 (WCAG) 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 the DOJ 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.
Technical Standards
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. WCAG stands for Web Content Accessibility Guidelines.
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 against owners of websites and mobile apps.
Think of WCAG 2.1 AA as the updated version of 2.0 AA with 12 updated success criteria (i.e., to-do items) that work on top of 2.0. Stated another way, 2.1 AA includes all of the success criteria in 2.0 AA + 12 newer bullet points.
The official WCAG documentation is very technical but you can get my WCAG 2.1 AA Checklist (a great supplement) for free by subscribing to Accessible.org.
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:
- Terminology
- Best practices for accessibility and legal compliance (for larger entities)
- The legal landscape
- 15 employees myth
- Estimated cost of accessibility
- Evaluating products and services
Compliance vs. Accessibility
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 (on the web) accessible (website, mobile apps, 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 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.
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.
The Law
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.
Picking up on the DOJ private enforcement actions, private law firms have been increasingly (and ever more aggressively) sending demand letters to entities small and large.
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.
Almost all litigation is settled privately.
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?
Yes.
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.
Illustration:
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.)?
Absolutely not.
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.
Cost of Website Accessibility
There are three purchases I recommended in my best practices list above. Let’s go over each.
Audit
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.
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
Remediation means the actual fixing of a website to be accessible.
Remediation is not simply pasting a line of JavaScript into your website and installing an overlay toolbar that shows a menu of supposed accessibility options.
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.
Accessibility Policy / Statement
Although an accessibility statement does not make a website accessible, I highly-highly recommend them because the DOJ has mandated them in private enforcement actions and plaintiffs’ lawyers continually call for them in their demand letters and lawsuits and as part of settlements.
A good website accessibility statement will be a condensed version of your policy (larger organizations will have detailed policies) and serves as your publicly posted stance on accessibility.
You can create one for free but you can also purchase my full template at Accessible.org/products.
Products and Services
With website accessibility, price definitely should not be your sole criteria in deciding what service provider to choose.
Why?
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 real manual services (WebAIM, Deque, Paciello Group, Tenon, Level Access, etc.) but the starting price is several thousand dollars.
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 for the last year+, lawsuits are popping up where websites with toolbar overlays are getting sued (no surprise here – this was inevitable).
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 how you evaluate what is detectable, scans only detect about 20-25% of accessibility issues per WCAG 2.1 AA.
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 a genuine agency for an audit, that they’re manually going through your website and 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 offerings (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 has mandated consultants in multiple settlement agreements), there are several practical benefits. A consultant can:
- Conduct manual audits
- Create a web accessibility plan
- Help you deal with vendors, evaluate products and services
- Educate your company on accessibility
- 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
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 WCAG 2.1 AA Checklist 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 kris@accessible.org.