In the Crosshairs

SEMA News—March 2022

INTERNET

In the Crosshairs

Websites That Forget Disabled Users

By Joe Dysart

Retail websites have become low-hanging fruit for attorneys filing accessibility lawsuits.

Businesses are discovering the hard way that websites forgetting to accommodate disabled people are targets for usability lawsuits. The great irony underscoring the trend is that scores of service providers can quickly analyze your website for a few hundred dollars and advise—point for point—how to safeguard it against such a lawsuit.

Most of the lawsuits are coming from web surfers who have difficulty seeing as well as those who have difficulty hearing. In 2020, nearly 11,000 disabilities lawsuits were filed against website owners, charging that they were in violation of the U.S. Americans with Disabilities Act (ADA), according to Crownpeak (www.crownpeak.com), a service provider specializing in making sure that websites comply with the ADA.

Perhaps even more harrowing were the more than 265,000 ADA demand letters that were sent to U.S. businesses in 2020. The letters threatened lawsuits unless businesses became ADA-compliant for any number of reasons and better represent the full scope of vulnerabilities businesses face if they don’t comply with the ADA, according to Crownpeak.

Essentially, the ADA has triggered open season on litigation against businesses that are not in complete compliance, and business websites have become an easy mark for such litigation and protests.

“In the United States, it is largely accepted—due to overwhelming case law—that the internet is a place of public accommodation and it is therefore broadly considered that business websites are subject to regulation by the Americans with Disabilities Act,” said Claire Van Note, sales support coordinator for Accessible360
(https://accessible360.com), an ADA-compliance service provider.

Even more concerning for businesses is that 78% of the websites hit with ADA lawsuits were retail sites, according to “2020 Full Year Report: Digital Accessibility Lawsuits” by UsableNet—a consultant in ADA web compliance (https://info.usablenet.com/2020-report-on-digital-accessibility-lawsuits).

In addition, many of the attorneys behind the suits got especially creative with their litigation, filing one lawsuit against a business for a website that was out of ADA compliance and filing a second lawsuit against the same business for a mobile app that was also out of compliance.

In a phrase, businesses are the very definition of low-hanging fruit for ADA lawsuits in the eyes of attorneys specializing in ADA litigation. Indeed, in a recent study, 97% of the world’s top one million websites had accessibility issues, according to WebAim (https://webaim.org/blog/webaim-million), a nonprofit research group affiliated with Utah State University.

Not surprisingly, there is intense interest among businesses on how to comply with the ADA and similar regulations. One telling example is a library of digital accessibility rules that is maintained by Deque Systems, an ADA compliance service provider. It hit more than 100 million downloads in December 2020—less than two years after it was made available for free on the web.

“The exponential rate of adoption we’ve seen in recent years is indicative of digital accessibility becoming more pervasive for the nearly one in four U.S. citizens with disabilities,” said Dylan Barrell, chief technology officer for Deque Systems.

Granted, there has been pushback against the ADA from some business defense attorneys, who have successfully argued that the act does not apply to digital properties. Specifically, the United States District Court for the Southern District of Florida recently found that Winn-Dixie Stores was exempt from providing an ADA-compliant website (www.workforcebulletin.com/files/2021/04/Gil-v.-Winn-Dixie-Stores.pdf).

The legal technicality was that the ADA regulates 12 kinds of tangible physical places. A website, by definition, is not a physical place, according to the court. Even so, other courts—including the United States Court of Appeals for the Ninth Circuit—have found the opposite, concluding that websites do need to comply with the ADA.

According to Accessible360’s Van Note, the bottom line is that your best move is to ensure that your business website complies with the ADA unless you’re looking to play the odds.

Not only will ADA compliance for your website keep the attorneys at bay, but it can also be used as a marketing tool, enabling you to advertise that your website—unlike the 97% of the top million sites on the web—is user-friendly to disabled surfers.

“Besides being legally mandated per the Americans with Disabilities Act, more organizations are realizing the benefits of digital accessibility, ranging from capturing overlooked market share to lowering operational costs and boosting brand value,” said Preety Kumar, CEO of Deque Systems.

Added William Littman, head of legal affairs for Crownpeak, an ADA compliance service provider: “What’s important is realizing that we’re dealing with real people and real issues related to accessibility. These are people who need to have access to your website, and accessibility is a feature that companies should adopt as a matter of course. There’s really a lot more going on under the surface of the data that’s published, and every business needs to remember that this is more than just trends and numbers. At the end of the day, it’s about people.”

Despite all the lawsuit threats, there is currently still no law in the United States that sets out specific guidelines for how websites should comply with the ADA. Congress attempted to pass such a law in 2020, but it failed. In the meantime, service providers advising on ADA compliance have been relying on guidelines developed by the World Wide Web Consortium (WC3) to prove a website’s ADA compliance.

The WC3 is an international community of mostly web designers and related techies that has maintained web accessibility guidelines for years now (www.w3.org/WAI/standards-guidelines/wcag).

There are many ways to ensure that your website matches WC3 guidelines, including reading the WC3 guidelines and doing it yourself—or hiring an ADA consultant to eyeball your website and draw up a list of changes needed. Perhaps one of the easiest alternatives, however, is to tap an online monitoring service for as little as $390 per year, which will check your website regularly and alert you to any changes your website needs to stay in ADA compliance.

An even less expensive alternative: If you have a website that essentially remains unchanged, you could subscribe to one of the online services for just a month, make the suggested changes, and then cancel the service until you make additional changes to your website that may put you in ADA jeopardy.

Here’s a representative sampling of online compliance service providers that promise to ensure that your website is ADA-friendly:

accessiBe (https://accessibe.com): $49 per month. This service provider uses artificial intelligence to analyze your website and offers recommendations such as screen readers and keyboard navigation tools that you can add to your site to make it ADA-
compliant.

EqualWeb, (www.equalweb.com): $390 per year. Another compliance advisor that uses artificial intelligence analysis, EqualWeb also offers plug-ins for ADA compliance, including text readers, screen reader adjustments, an accessibility menu and the like. Web authoring platforms supported by the service include Wordpress, Wix and Shopify.

MaxAccess (https://maxaccess.io): Starts at $37 per month. This service provider scans your website every 24 hours to ensure that it’s ADA-compliant. Features it looks for include accommodation for color blindness, color contrast, toolbar options, screen options and the like.

Crownpeak Digital Quality Management (www.crownpeak.com/products/digital-quality-and-accessibility): Call for pricing. Crownpeak does a complete scan of your website for ADA compliance, including rich media, metadata, content presentation, links, URLs, mobile experience, images, PDF accessibility and the like.

Accessible360 (https://accessible360.com): Call for pricing. In addition to computer analysis for ADA compliance, Accessible360 also offers live user testing of your website.

Deque Systems Axe Plug-In (www.deque.com): Call for pricing. Deque uses a plug-in for Chrome and Internet Explorer that tests your website for accessibility compliance as well as any web applications that may be running on your website.

Silktide (https://silktide.com): Call for pricing. Silketide’s analysis serves up a task list your web designer can use to bring your website into full ADA compliance. The service explains the need for every accessibility task required, and Silktide also offers ongoing accessibility training via phone, chat, webinar and video tutorials.

DubBot (https://dubbot.com): Call for pricing. DubBots’ analysis produces of list of changes you’ll need to make to your website, ordered by priority. The service also offers a detailed description of each ADA issue.