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It may seem strange, but the Americans with Disabilities Act (ADA) still does not mention websites specifically. For years, this has led to confusion about whether or not websites have to be compliant with ADA law.
As a general rule, if Title II or Title III of the ADA is applicable to your organization, then your website should be compliant. Titles I and II include businesses with 15 or more employees, state and local governments, employment agencies, and labor organizations.
Whether you’re starting a business, or have an organization that’s growing fast, understanding how the ADA applies to your website can save you time and energy – not to mention saving you from costly legal battles.
History of ADA and Digital Accessibility
The ADA was signed into law in 1990 as a civil rights law, prohibiting discrimination based on disability. In what was already an uphill battle fought by disability advocates, improving accessibility in the Information Technology sector turned out to be even more difficult. At a time when the internet was still in its infancy, the ADA applied almost exclusively to the physical world. Since then, Congress hasn’t made changes to the law to clarify where it stands on websites, but the US Department of Justice (DOJ) and United States federal courts have stepped in with a broader interpretation. In fact, the DOJ has made numerous statements to the effect that it will enforce its position that websites must be accessible for people with disabilities.
The ADA isn’t the only piece of legislation that relates to online accessibility needs. In 1998, Section 508 of the Rehabilitation Act was updated to include “information and communication technology,” which means U.S Federal government agencies must consider accessibility in all aspects of communication, including digital. This was a major milestone, and is the reason all government agencies are now required to provide accessible PDF documents upon request.
While Section 508 does not apply to commercial businesses, it did affect interactions between federal contractors and governmental agencies. This sent a beacon to the commercial world that accessibility is a standard worth adopting.
Finally, in 2010, the U.S. Department of Justice (DOJ) passed the Americans with Disabilities Act Standards for Accessible Design, which identified “electronic and information technology.” To the surprise of many, it still failed to mention websites directly. However, in its Notice of Proposed Rulemaking (NPRM), it stated that “although the language of the ADA does not explicitly mention the Internet, the Department has taken the position that Title II covers internet website access”.
Advocates continue to work towards a clearer directive on digital accessibility. Regardless of legal clarity, the digital world has become just as important in people’s lives as much of the physical world. If you’re building a website, it’s important to follow guidelines for an accessible standard. Failing to do so could spell legal trouble.
How Is WCAG Related to ADA Compliance?
Federal agencies and their contractors are required to follow Web Content Accessibility Guidelines (WCAG) 2.0. This is due to Section 508 of the Rehabilitation Act being updated in 2017 to explicitly comply with WCAG 2.0 A/AA. Commercial businesses, while still needing to be accessible, won’t find any guidelines in the ADA.
Without a clear and legally binding list of requirements, webmasters have been using WCAG as a de facto set of guidelines. This is the correct method, since past DOJ cases related to web accessibility show WCAG to be the dominant factor in rulings, with WCAG 2.0 AA being the minimum standard.
Even still, it is recommended to go beyond and attempt to reach for WCAG 2.1 AA, to futureproof your website. The major difference between version 2.1 and its predecessor is the focus on mobile devices. With internet use on mobile devices being incredibly common, it would not be surprising if this were mandated into law in the near future.
If they have been so widely adopted, why haven’t these guidelines been enshrined in law? The DOJ was allegedly close to adopting WCAG as the official standard, after many predicted that President Biden’s administration would take a more aggressive approach to enforcing the ADA, but it has not done so as of mid-2021. What remains clear is that the internet is an essential place that requires public accommodation in order to create a fair playing field for all individuals, regardless of ability. Until Congress acts to clarify the ADA, courts and regulators will likely continue to cite the WCAG as the “gold standard” for ADA compliance. Those who don’t abide by the standard may face repercussions.
Will I Get Sued for Not Being ADA Compliant?
The amount of federal lawsuits filed against businesses and governmental organizations is on the rise. According to law firm Seyfarth Shaw, in 2017 alone, there were more than 800 lawsuits alleging websites violated the ADA by being inaccessible. A variety of industries have been targeted, including banks, credit unions, restaurants and major corporations. The number of lawsuits has increased every year since, and show no signs of slowing down.
Notable ADA lawsuits show that virtually every type of company is at risk of being sued for having an inaccessible website.
For example, Parkwood Entertainment, a company owned by Grammy-winning performer Beyoncé, was sued because the absence of alt text on images made the website unusable for visually impaired individuals who wished to browse the site.
In a similar case, Harvard University and the Massachusetts Institute of Technology (MIT) were both sued for not having captions on their online content, in which The National Association of the Deaf (NAD) successfully argued a lack of captions made the content inaccessible to hearing-impaired users.
While these are the organizations that make headlines, thousands of small businesses are undergoing similar lawsuits with no media coverage.
If faced with a lawsuit, businesses typically have to pay the disabled individual’s attorneys’ fees (or at least some portion thereof), their own legal fees, and will have to agree to certain modifications to the website. The costs of doing nothing are immense. Outlined by the National Center on Disability and Access to Education (NCDAE), in one case, it was found that if an educational institution had made accommodations prior to being sued, it could have saved close to $600,000.
It is financially wise to invest in web accessibility to avoid these types of lawsuits. Until a clear set of guidelines is proposed by the DOJ, the best form of protection is risk mitigation.
Things You Can Do to Make Your Website ADA Compliant
Proactive steps include conducting an accessibility audit to determine a plan for achieving the standards outlined in WCAG 2.0 AA. UserWay recommends having an audit with clear and actionable checklists to improve the accessibility compliance of your website. The UserWay audit report meets the strict standards enforced by government and regulatory bodies in the US and internationally.
Another option is hiring a consultant for advice or to work with your site, but this is a costly method many choose to avoid. Consultants perform many duties including providing an evaluation and reviewing digital assets to confirm they are in compliance, or even looking for patterns in your web behavior to identify poor webmaster practices and making recommendations to improve your standards. And as you may have guessed, this is a time-consuming process that can take months to complete.
How do you know if your investment is paying off? After conducting a scan of your site to find violations and then working to remediate them, hiring testers with disabilities to review your site is the most reliable method. These testers can easily find problem areas, alert companies to obstacles, and give insights on what is most critical to correct next.
If you choose to work with testers, consider those from the blind or low vision community, those who are deaf or hard of hearing, and individuals whose physical disabilities hinder their manual dexterity. Testers with lived experience will always provide a better, more honest opinion than just following a checklist.
If your website is frequently updated, it’s only natural that some things may fall through the cracks. Accessibility tests should be a regular occurrence. Using a checklist when updating your site, as well as studying guidelines, is a good method of maintaining a high accessibility standard, but this shouldn’t replace frequent accessibility scans. Automating a scan or having a widget that can flag occurrences for you is a good method for making sure high standards are maintained. You can adopt professional help to do this for you, or conduct your own audit using UserWay’s real time scanning and monitoring.
Large organizations may have the time and money to spend on consultants, and some may even have an in-house specialist, but this is an option out of reach for many. For small businesses, there is only one comprehensive method for affordable compliance, and that’s UserWay.
UserWay Makes ADA Compliance Affordable
Now that you’re familiar with the ADA, you’re equipped with the information you need to maintain a website that is compliant and can be accessed by all. Small businesses may be overwhelmed at the idea of conducting the work that an audit may reveal. Fortunately, UserWay makes it easy.
UserWay’s AI-Powered Accessibility Widget automatically brings code into full WCAG 2.1 compliance while also providing a much richer selection of accessibility functions to your site’s users. Available for all leading CMS platforms, as well as plain HTML/CSS/JS sites, it makes your website meet the strictest governmental regulations as required by the ADA by instantly remediating accessibility violations. Tens of millions of pages are currently within compliance laws based on WCAG 2.1 AA requirements thanks to UserWay’s AI-powered widget, the world’s most comprehensive fully-automated solution for ADA compliance.
It’s never too early or too late to start considering digital accessibility. Ultimately, the goal is to allow individuals, regardless of their disability, to be able to navigate your site freely without obstacles. It’s about fairness – and the ADA is a meaningful tool for achieving it.