Over the last two years, there has been a significant increase in lawsuits with companies being sued because their websites do not meet current accessibility standards.
This increase in legal activity is getting the attention of many of our home builder and retailer clients. The obvious question that is being asked is “What do I need to do to my website to avoid being sued?” Unfortunately, the exact legal standard of what a website must do in order to be considered accessible and protected from legal action is currently vague and difficult to fully measure. This lack of clarity is leading to a lot of legal uncertainty.
At the end of July 2019, a group of US Senators, led by Senator Chuck Grassley from Iowa, reached out to Attorney General William Barr asking for an update on efforts to clarify the current legal landscape regarding the application of the Americans with Disabilities Act (ADA) to commercial websites. I want to applaud these Senators for taking the time to address this important issue.
Creating websites that are accessible to everyone, including those with disabilities, is not only the right thing to do, but also makes good business sense, as it allows your company to serve a larger customer base online.
In the past, many website development projects have not made accessibility a primary requirement or goal, often due to ignorance of website accessibility requirements, or simply not paying attention or even trying. I fully admit that the recent increase in website accessibility lawsuits has caused our team at Blue Tangerine to pay closer attention to ensuring that the websites we build and manage are incorporating all of the industry’s best practices in website accessibility.
The efforts of those using these lawsuits to drive awareness and improve the overall online experience for a disadvantage group of users is having a positive impact. However, it is difficult to accept that all of these lawsuits are altruistic in their intent and are only trying to draw attention to the issue of poor website accessibility. Many of the lawsuits now appear to be opportunistic or even predatory attempts to make a buck, as noted in a recent sanction issued by a Florida judge against a serial plaintiff and his attorney.
Even if these plaintiffs do not all have pure motives, these website accessibility lawsuits have now clearly established that a company’s website does fall under the existing ADA’s requirements to provide reasonable accommodation to individuals with disabilities. It is time for your company to start paying attention to this website requirement and ensure accessibility is part of all your online efforts. These lawsuits have also highlighted the fact that there is not a clear legal standard of exactly what a business must do for their website’s accessibility to be “good enough” or “legally acceptable”.
The World Wide Web Consortium (W3C) has published a set of Web Content Accessibility Guidelines (WCAG) for many years which are generally considered to be the industry standard for making a website accessible. On the surface, it seems like it would be straight forward to select the current version of the WCAG and simply say that a website must conform to this standard. If you do, then your site is considered accessible and you can sleep soundly at night with no need to fear a lawsuit. Unfortunately, this is easier said than done.
The Issues & Challenges
As I’ve spent time reviewing websites and advising our clients on the accessibility updates that they should consider, I have seen the following issues and challenges emerge as they attempt to improve their website’s accessibility and protect themselves from legal action.
1. What is Good Enough?
Conformance with website accessibility guidelines is currently measured at a “page” level, rather than a “site” level. However, the legal focus is currently on an entire website’s accessibility overall. Both approaches make sense for their specific purposes. However, this disconnect in how accessibility is measured leaves us with the question of:
How many pages of a site need to be in conformance for the entire site to be considered acceptable and not vulnerable to a lawsuit?
If 75% or even 90% of the pages conform to the website accessibility guidelines, is that good enough legally? If 100% is the standard, is that level of accessibility even realistic?
2. Cost of Determining Conformance
Once a website accessibility project is completed, it becomes necessary to do a formal review for conformance with the website accessibility guidelines.
Ideally, an automated software tool would be able to scan your website and generate an accessibility report. Unfortunately, website accessibility scanning software cannot test for every rule found within the accessibility guidelines. In fact, some estimates are that automated scanners can only check for conformance with approximately 25% of the overall guidelines. This means that determining conformance with the remaining 75% of the website accessibility guidelines requires a manual review by trained individuals, which is time consuming and expensive, especially for large sites with hundreds, or even thousands, of individual pages. Of course, at this point we are just discussing the cost of determining a site’s conformance. We haven’t even addressed what it costs to remediate issues when they are found. When does the cost of keeping a website accessible become an unreasonable burden?
Accessibility conformance is measured at a moment in time, but good websites are not static, rather they are constantly being updated with new content, products, etc.
If a website is determined to conform to the latest website accessibility guidelines today, and then new content is added in the future which does not fully meet those guidelines, is a business suddenly at risk for a lawsuit? Furthermore, what happens when new guidelines are issued in the future to address emerging technologies? How quickly would a new guideline need to be implemented before a company was again at risk of being sued? In my research on this issue, I have yet to see any clear standards on how often a company must measure their website’s conformance with the accessibility guidelines, or even anyone really discussing the idea that this needs to be a recurring process. Personally, I think an annual review requirement would make sense (assuming the review costs remain reasonable), similar to how we review PCI security compliance regarding credit card handling processes today.
4. Subjective Measurement
Deciding whether a website truly conforms with the website usability guidelines as they stand today can be very subjective and open to interpretation.
Some guidelines can technically be met, but still not meet the ultimate goal of helping a disabled user navigate the site more easily. One example that I’ve seen repeatedly is the poor use of alt tags for images. The accessibility guidelines require that all images, with a few exceptions, use an “alt tag” in the HTML code to provide alternative text to describe an image. The intent is to allow an assistive technology, such as a screen reader, to use this content to verbally communicate the content of the image to a user who cannot see it. It is easy to use scanning software to find issues on web pages that are not using the alt tag at all. However, it is a whole other level of effort to decide if the content put in an alt tag is effective and useful. For example, a home builder website will have a page that describes the features of one of their available floor plans, which will include an image of that plan. An alt tag for that image that simply says “Floor Plan” will meet the accessibility requirements. However, that really isn’t the most helpful description. Instead, alt tag content more like “The Magnolia 4 bedroom floor plan featuring a master on main option” will be much more useful to a visually impaired visitor who is trying to understand the content of the page.
Time to Take Action
Regardless of your feelings about the plaintiffs generating the recent lawsuits, it is past time for all companies to start taking website accessibly seriously. For some, the uncertainty of the current legal environment can cause a “wait and see” mindset, but not taking any action will leave your business vulnerable. Even though the legal standard has areas and key questions that need further clarification, do not let that stop you from making the effort to meet today’s website accessibility standards to the best of your ability. At the same time, don’t hesitate to reach out to your elected officials* and let them know that legal clarity on this important issue is also past due.
To quickly find contact information for your US Senators and Representative, go to HomeTownLocator.com and use the “Research a US Address” feature. This tool will show you a variety of detailed information about your address, including a link to the contact information for your congressional district.
Remember, Blue Tangerine is here to help. Contact us today and ask about a website accessibility review.
Note: Blue Tangerine is a digital marketing and website development agency and not a legal firm. Blue Tangerine does not provide legal advice. Always consult your attorney with legal questions specific to your situation.