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Feature image Will I Get Sued for Not Being ADA Compliant?

Web accessibility lawsuits are on the rise, making it essential for your website to be in compliance with the Americans with Disabilities Act (ADA).

Being ADA web compliant means having a website or digital service that is accessible, that is, usable, readable, and available, for all. Much in the same way that ADA compliance in physical brick and mortar businesses may require wheelchair access, or similar accommodations, websites and online applications must be accessible, in their way. Yet, until recently, it has not been clear whether ADA law applies to websites or digital content. Recent court cases show that practically all websites are exposed to legal risk if they’re not accessible, especially businesses with commercial interests and websites connected to a physical location. The ambiguity of the ADA has led to a great deal of confusion, and cost millions of dollars for businesses to fix to become compliant with the law.

Understanding the history of the ADA and digital accessibility can help explain why being compliant is not only in your business’s best interest, it’s helpful for everyone using the internet.

What Does Being ADA Web Compliant Actually Mean?

The ADA states that all electronic and information technology such as websites and apps must be accessible to everybody, including folks with disabilities of various kinds. For example, your website must accommodate those who are deaf by providing captions and, in some cases, transcripts for your videos.

Interestingly, not everybody realizes they need to do this. It may seem optional, or like a nice thing to offer your users, when in fact it is a necessity and legally required. When you’re starting a business and decide to create a website, digital accessibility may not be top of mind. However, ADA compliance impacts almost anyone who has a website for public, commercial, or charitable purposes in the United States.

Websites that must be in ADA compliance include:

  • Businesses that employ over fifteen staff members and/or operate more than twenty weeks in a year, including large corporations, SMEs, cafes, hotels, restaurants, clothing stores, and more.
  • Charities and NGOs
  • Local and state agencies and government bodies

What’s more, the WebAIM Million study in 2019 analyzed one million home pages of large and small companies. The study found that 98% of those web pages failed to meet the recommended requirements for digital accessibility.

If you’re a public, private, or third-sector enterprise like a non-profit, and you have a website, that website will need to be ADA compliant, or you are actually jeopardizing your organization’s future. If you feel your website may fall outside the legal realm of the ADA, it may still make sense to be compliant. The history of the ADA shows a pattern of ambiguity that has put practically any website at risk.

The History of the ADA: Past, Present, & Future

The ADA (Americans with Disabilities Act ) was passed in 1990 as a civil rights law. Originally, it was meant to solely protect against discrimination of disabled people in the physical domain: hiring procedures, for instance, or equal access to a public building.

Title II of the act applies to state and local government entities, whereas Title III applies to public accommodation and commercial entities. As time passed, disability rights campaigners pushed for the act to apply to the digital world too.

It was not until 2010, however, that the U.S. Department of Justice (DOJ) passed the Americans with Disabilities Act Standards for Accessible Design. In 2011 and 2012, the DOJ revised Titles II and III. Stipulating that Title III of the ADA includes web accessibility for all, irrespective of disability.

There are still no definitive US government guidelines for what makes a website ADA compliant. Businesses and organizations must rely on the Web Content Accessibility Guidelines (WCAG) to provide clarity on making websites compliant with the ADA.

In 2017 the Trump Administration placed ADA guidelines onto its ”inactive list”, meaning that it produced no new guidelines and was not considered a priority. This put the administration’s views at odds with the position the DOJ took towards the Obama era legislation and as of October 2021, no new guidance about ADA web accessibility has been announced.

Recently, President Biden has confirmed that his administration will be much more active in enforcing Title III of the ADA, especially when it comes to digital accessibility. With so much volatility, if your website isn’t already ADA compliant, now is the time to consider an overhaul.

Will I Get Sued for Not Being ADA Compliant?

Yes, you can be sued for not being ADA compliant. The penalties can be harsh too. For a first-time violation, penalties usually range from $55,000 to $75,000. For a repeat violation, penalties can cost $150,000 although costs can potentially go way higher depending on your annual turnover. If you’re federally funded, you even risk your funding being revoked.

Since 2010, the volume of ADA prosecutions relating to digital content has grown. In 2018, 2200 such suits were filed in federal courts. By 2020, there were almost ten web ADA lawsuits filed per day, costing potentially hundreds of thousands of dollars. This will only increase with the new administration’s commitment to stricter enforcement of the disability law.

In 2017, the first trial in a web accessibility lawsuit took place in Florida. It was decided that the supermarket chain Winn Dixie had violated the ADA by having an inaccessible website. Winn Dixie was ordered to pay $250,000 in damages to remediate its website. In that same year, a lawsuit was brought against Domino’s Pizza for having an inaccessible website. In 2019 the court sided with the plaintiff.

As well, in 2015, edX, an online course provider founded by the Massachusetts Institute of Technology (MIT) and Harvard University, were taken to court by the National Association for The Deaf. They argued that edX courses were inaccessible to those with hearing difficulties. edX was forced to enter into a four-year agreement that made sure all courses would be accessible within eighteen months; they then had to hire new Web Accessibility staff and institute a policy of Web Accessibility Training for employees related to their website. American Express, Nissan North America, and Eventbrite have also found themselves in legal trouble over compliance with the ADA.

It’s not just large corporations and academic institutions at risk of lawsuits, either. In 2018 a blind woman sued Whisper Restaurant & Lounge in California because she couldn’t read the menu or make a reservation online. In 2020, a small grip-tape business in New York was sued for mislabeling buttons on its website: a lack of ”alt-text” that allows an image to be described to users who are blind was also a problem, amongst other accessibility issues.

One reason why the law is set up like this relates to the circumstances of its original creation in 1990. Some lawmakers were worried that the ADA would cause government overreach. They didn’t want the creation of a new government agency to enforce the law, in the same way that the Drugs Enforcement Association does for narcotics. Instead, they relied on private enforcement, resulting in the current situation where people who feel they have been discriminated against can file a lawsuit.

The risk of being sued is real, but mitigating risk is not the only good reason to comply with the ADA. Having a more accessible website means you are available to everyone, regardless of ability. It will also almost certainly improve your site’s SEO and attract more traffic to your website, as well as bringing in and retaining more customers.

Making Your Website ADA Compliant

Because there’s no published government guidance on what an ADA compliant website looks like, it’s best to follow the WCAG guidelines. These guidelines have been referred to explicitly in court rulings meaning that it’s the gold standard as far as ADA compliance goes, and this looks to be the case for the foreseeable future.

Here is a simple checklist for understanding the different levels of ADA compliance, as specified by WCAG guidelines:

Level A: Website that some users can access successfully.

Level AA: Website that almost all users can access successfully.

Level AAA: Website that all users can access successfully.

Only websites ranked Level AA or above are compliant with ADA regulations.

There are several ways you can make your website ADA compliant, but chances are, you aren’t an expert on website accessibility. You could hire a consultant, but consultancy fees are costly. Another option is to hire testers. Some businesses do this, and choose to hire testers from the blind, low-vision, or deaf community, for example. This ensures you receive trustworthy first-hand advice on how to improve your website.

Alternatively, you could ensure full ADA & WCAG compliance with UserWay’s AI-Powered Accessibility Widget, the world’s most comprehensive accessibility solution.

UserWay Makes Your Site Fully ADA Compliant

Violating ADA is simply not worth the risk. UserWay’s AI-Powered Accessibility Widget instantly remediates accessibility violations by doing the hard work for you. Over one million websites are currently meeting compliance laws based on WCAG 2.1 AA requirements by trusting UserWay and defending themselves from litigation related to ADA.