Attorney Guide for Web Accessibility
You get a frantic call from your client. They just received a demand letter or lawsuit that claims that they are violating the ADA because their website is not accessible. This may come as a complete surprise to your client, as many are not aware that it’s become established that websites (and now mobile apps) are considered “places of public accommodation” and thus subject to the ADA or Section 508 of the Rehabilitation Act.
I’m not a lawyer so I can’t suggest a legal defense strategy, however I can suggest how best to guide your client from an accessibility perspective. If you are looking for legal defense strategies, I have a list of attorneys that specialize in web accessibility defense here. If you also specialize in this area and wish to be added to this list, please get in touch with me.
ADA and Section 508 Compliance Legal Summary for Websites and Mobile Apps
As websites and mobile apps have become ubiquitous aspects of life, it’s become crucial that they comply with Title III of the American Disabilities Act (commercial) and Section 508 of the Rehabilitation Act (government) - plus a growing number of state laws (CA - Unruh Act in particular). These laws ensure that all people have universal access to both physical and digital places of public accommodation. While the DOJ has dragged its feet in officially making the WCAG the official standard for the ADA, Section 508 has done so explicitly. And in the case of the ADA, the courts have established quite consistently that the WCAG serves as the de facto standard in providing digital accessibility.
The WCAG was created by, and is managed by the international governing body, the W3C. The current version is WCAG 2.1 and there are three levels: A, AA, AAA, however your clients must only meet A, AA levels to avoid issues. AAA criteria serve as best practices and are often unreachable.
Website ADA Compliance Guide
First it’s important to understand that unless a website is specifically designed and built to enable the Assistive Technologies used by people with disabilities, it simply isn’t going to be accessible. And this is not the fault of your web developer unless such compliance was specifically contracted AND the developer maintains 100% control of the site. Typically the developer builds the site and then turns it over to the client to use, and in such use, the client can affect its accessibility.
What should your client do to make their website ADA compliant and avoid continued legal hassles?
Your client will be faced with two decisions: fix the current site or build a new one. The time and cost of fixing the current site may very well come close, if not exceed, the cost of a rebuild. And some websites built on certain closed/hosted platforms such as Wix or Weebly may not even be capable of reaching compliance because the front-side code is locked down.
Building A New WCAG Compliant Website
Redesigning a website for WCAG compliance begins with either training the in-house team for web accessibility or outsourcing to a qualified web developer that specializes in 508/ADA compliance. Key steps will include:
- Testing for color use and contrast during the design phase.
- Incremental unit testing during the development phase.
- Thorough 3-factor audit of the entire website once development is complete and content is loaded. Details of what a “3-factor audit” includes to follow.
- Periodic audits using automated tools until any substantial changes are made that would require a full 3-factor audit.
Expect to pay more for an accessible website. Not only is the service worth more and is in high demand, but it also adds significant time throughout the project. Expect to pay between 10%-20% more.
Making an Existing Website WCAG Compliant
This is a two-step process that begins with an audit to reveal WCAG violations, followed by remediation to fix those issues.
WCAG Website Auditing for ADA & 508 Compliance
It’s strongly encouraged to start with a 3-factor audit that combines the results of automated, manual, and assistive technologies into one comprehensive audit. Unless your client just cannot afford all three steps, avoid the temptation to only conduct an automated audit. Even the best can only detect ~30% of WCAG issues, because these issues are nuanced and interpretive. Adding manual and assistive technology testing (screen readers, etc) of unique pages/templates captures the remaining 70% of issues.
The quality and depth of the reporting is important. Investing more here will not only provide greater assurances, it will also save money during remediation. Thorough high-quality reporting will also greatly reduce the number of false positives, and well written remediation guidance will greatly reduce the time/cost impact on the remediation team. Learn more about our WCAG auditing services.
Once remediation is complete, a second verification audit should be performed. Of note, most WCAG auditing companies do not include this second audit within the scope of the initial audit. (We do.)
How Much Will a 3-Factor Audit Cost?
On the low-end for a basic marketing website, expect to pay between $7K-$15K. For more complex and ecommerce sites, expect that to rise into the $20K plus range.
What to Look Out For
This is still the wild west, and there are actors trying to get in with highly desired fast and cheap solutions however their highly questionable claims border on snake oil. The two to avoid are “overlay” widgets and alternate accessible websites approaches.
As the name suggests, overlay solutions layer over an existing website. Such sites are marked by a little blue icon in the lower corner of the page, which must be selected to activate the overlay. A toolbar opens to reveal options to adjust the website for people with various disabilities. Three key points
- Underlying inaccessible code remains exposed to trolls
- Automated tools miss 70% of WCAG issues
- Forces user to abandon their own preferred screen reader to use the widget’s screen reader and attempt to then learn and use a foriegn tool. Needless to say, this is extremely frustrating for actual people with disabilities. Watch this video of a blind user attempting to use such a site with an overlay widget.
This approach does deliver significant accessibility and does not protect against lawsuits, regardless of claims and guarantees (note lack of indemnification). We often get inquiries from website owners using these who have since been sued. Some speculate that the little blue disability icon serves as a flag to trolls, who then immediately know the site is not accessible.
Alternate “accessible” Website Approach
This “solution” provides an “Accessible Website” button that links to a separate website. In practice, these “accessible websites” have different and reduced navigation, features, and content. Thus failing the core intent of the ADA to provide full and equal enjoyment. In this example for a lodging property , the actual ability to book a room is not even offered.
WCAG Accessibility Website Remediation
With solid audit results that include remediation guidance, your client’s development team should be equipped to fix each issue. By default we recommend that the existing team execute the remediation. They will learn quickly and avoid mistakes in the future. If such a team is too busy or if management is weary and would rather have a team that is already well versed in WCAG compliance, then a team such as ours can step in.
Mobile App ADA Compliance Guide
In the Robles v Dominos case in California, the 9th Circuit affirmed that ADA Title III applied to not only websites, but mobile apps as well. Dominos attempted to appeal to the Supreme Court, which refused the case, letting the 9th’s decision stand.
WCAG Mobile App Auditing
Auditing a mobile app is of course different. While there are some automated testing tools for Android and IOS, most are not terribly mature or reliable. We rely on manual testing and provide reporting that identifies issues and remediation guidance.
WCAG Mobile App Remediation
Similarly with out recommendations for websites, the existing mobile app development team should perform the remediation. In both cases, a strong audit that includes thorough remediation guidance will save a lot of time and cost.
Regardless of whether your client has a mobile app or website that has triggered the lawsuit, it’s important to advise against taking short-cuts. This is a new cost of doing business and biting the bullet early will help them address the current complaint and avoid future legal issues.