The 2019 Guide to Website Accessibility (for Lawsuit and Demand Letter Prevention)
This will be kinda long but don’t run off on me and start playing Bejeweled or scrolling through Instagram before you finish.
Well, we all have the attention span of mice now so, if you do dart elsewhere, at least come back because this is money-saving stuff right here.
Website accessibility is a white hot topic because everyone — from corporations to non-profits to small businesses — is getting their pants sued off.
Demand letters and lawsuits are like confetti flying over everyone’s head but none of us won the championship, we just won the right to have our time and money vacuumed from us.
The plus news is I’m an attorney (the good kind) and an ADA Website Compliance/accessibility consultant and I’m going to provide some help in 10 minutes or less.
You may be more than slightly befuddled as to what to do and how to approach website accessibility. In this guide, I’ll walk you through everything from the law to vendors in a plain English, K.I.S.S. manner.
Let us march forward to the promised land.
Web accessibility is a problem globally but I’m going to focus on the U.S. in this article.
If you’re from another place, don’t fret, because you’ll see, in the end, we’re all singing Kumbaya My Lawsuit together.
For Americans, we’re mostly focused on Title III of The Americans with Disabilities Act (ADA). It says that “places of public accommodation” need to be accessible to persons with disabilities.
Even though websites were never a part of the law, the ADA has been recently (and repeatedly) construed to include websites as places of public accomodation.
No formal federal guidance is expected in 2020 but the writing is on the wall: You need to make your website accessible.
The ADA implicates private entities which means you and I and mega corps and innocent little non-profits can all run afoul of it.
And just FYI, the 15 or more employees thing is only for Title I of the ADA.
Title I covers employment discrimination and employers with 15 or more employees are subject to it.
Title III covers places of public accommodation and there is no such 15 employee threshold.
This means you don’t need to have 15 or more employees to violate Title III (and thus be found to discriminate against persons with disabilities).
Another federal law that comes into play is the Rehabilitation Act. Section 508 is an amendment that requires information and communications technology (ICT) to be accessible for federal agencies and departments. And, for our purposes, Section 504 sweeps in recipients of federal funding (like universities) to be included in that.
Websites fall under that ICT umbrella.
Yet another federal law that plaintiffs’ lawyers are using as a basis to send demand letters (in the real estate industry) is the Fair Housing Act (both federal and state housing acts).
There are a few other laws and certainly some state laws (see Unruh Act, California and the New York Human Rights Law) that you need to be mindful of (because you can absolutely be hailed into a state court), but 508, Title III of the ADA, and the FHA are the primary federal laws to be on the lookout for.
Where we tie in globally is that, generally, if you can meet WCAG 2.0 AA, your website will be very likely considered accessible and thus in compliance with your country’s laws.
To take things a step further, it’s best practice to conform to WCAG 2.1 AA which adds one dozen bullet points (ways to enhance accessibility) to account for.
Internationally, many laws call for 2.1 AA conformance.
Because 2.1 AA includes a handful of updates specific to mobile devices, I highly recommend you base your accessibility updates here if you have an app.
There are a lot of other legal details but blah, blah, blah, right?
WCAG 2.0 AA (and WCAG 2.1)
Although it is commonly referenced, WCAG is not the law for private entities in the U.S. (check your local listings to see if it is in your neck of the woods).
And, really, it was never meant to be the law. It was written as technical standards for accessibility.
Writing law is entirely different from writing technical standards so this not a knock on the W3C.
And, with that, allow me to back up and introduce WCAG.
WCAG stands for the Web Content Accessibility Guidelines and it has multiple versions that layer on top of one another with different success levels of accessibility: A, AA, and AAA.
AAA is super strict and requires a Herculean effort to meet.
AA is semi-strict and is medium difficult.
A is the lowest rung and is easier to meet than the other two.
WCAG was published by the Web Accessibility Initiative (WAI) of the World Wide Web Consortium (W3C). The W3C is a non-profit, international community of do-gooders who try to make it so the web works cohesively.
WCAG 2.0 AA is continually referenced as a good standard for web accessibility across the world.
There are 38 different success criteria (AKA 38 things to check off that your website meets) that comprise WCAG 2.0 AA (once you roll up A into AA).
Again, as of 2020, the best case scenario for your website is that you meet all of the success criteria of 2.0 AA and then build on top of that to integrate the recently published 2.1 AA guidelines (there are 12 more new bullet points in 2.1 to make 50 total success criteria).
But that’s optimally speaking. Achieving full conformance with 2.0 AA isn’t a breeze because the wording in WCAG is more nebulous (another reason why it should never be the law) than any website owner would like.
How to Make Your Website Accessible
The short, fluffy answer is to make your website and digital offerings fully accessible and enjoyable to those with disabilities — to the same extent anyone else can enjoy them.
That’s the spirit of The Americans with Disabilities Act.
The let’s get serious and not get sued answer is to have someone make it so every last aspect of your website is scrutinized and fixed so that it meets all or as many of the 38 WCAG 2.0 AA success criteria as you can muster.
Also, test for usability. It’s one thing to account for all WCAG success criteria, it’s another to make sure your website is practically usable and doesn’t have any barriers.
The process of fixing a website to become successful is remediation. If we’re playing technical jargon Family Feud, remediation is the word that’s going to get you a bing…
Show me remediation!
So if you’ve got an in-house developer (or developerS if you’re a fancy pants) who is talented, big win for you.
You can walk up to them on Monday morning with a big grin…
“Hey Toddrick, I’ve got a little-huge project for you :)”
Still, they might not understand exactly what’s going on, the importance, and what to do so they’re probably going to need some background and accessibility-style training.
If you don’t have an in-house dev, you’ll need to hire a developer or seek out vendors that offer remediation solutions.
Or eek, learn everything yourself (not recommended, will take large time).
In my ADA Website Compliance article, I talk about a few big points of emphasis of website accessibility but I can tell you the biggest one for lawsuits right now:
Yes, alt text. For the love of god, update your alt text to be descriptive and convey the meaning of all your meaningful images (not decorative ones that only contribute to your web design).
The majority of ADA Website Compliance demand letters/lawsuits are rooted in missing or insufficient alt text. Once plaintiff’s lawyers have you here, they bolster their case (and make you look bad) by tacking on as many accessibility deficiencies as they can.
Alt text alone can practically be a demand letter/lawsuit stopper and it’s fairly easy to update (even if you don’t know your way under the hood of a website) so definitely work on this first.
2020 update: Here are the most common website inaccessibility claims found in 2020 lawsuits.
I went to the CSUN Assistive Technology Conference in Anaheim, California in March of 2019 (hey, eventually it’s going to hit 2020 so I have to timestamp) and I learned something verrrry interesting:
Most of the accessibility providers that you see in Google ads and Google results don’t actually offer remediation!
No, for real.
Turns out they’re chicken of the liability.
What they do is offer everything else: training, consultation, scans, audits… but no actual fixing of your website.
But they’re tricky, they make it seem like they surely offer remediation on their website.
Don’t get me wrong, that stuff can all be helpful (particularly, if you already have in-house developers) but what you really need is website remediation.
Most of them, if you really press them on remediation, will offload you onto one of their partners so they don’t get the liability but they do get a referral commission.
(Insert gold teeth smile here.)
There’s not an easy as pie, 1–2–3 solution for web accessibility just yet.
Wordpress themes are getting better and better and you can definitely find some solid themes and plugins but there’s nothing that’s an almost-instant solution just yet (WP themes will never be completely hands off because you do have to play your part in uploading accessible content).
When you search for accessible WP themes, what you’ll usually get is the ambiguous “more accessible” and “meets WCAG 2.0 AA” tags which both sound nice but then your eyes narrow and then you’re like, yeah, but will I really be accessible?
What I Recommend
If you’re a smaller business with a tighter budget, hire a good, earnest developer off Upwork or Freelancer or wherever (you’re looking at $15-$25/hr) and instruct them on exactly what you need done to your website.
If you’re a larger operation, of course you can do the same, but you can usually save time and get the project done sooner (muy importante #lawsuits) and get a more skilled developer by paying more (in the $25-$75/hr) range.
Of course, hiring a developer or agency who is versed in accessibility is preferable but you’ll end up shelling out more.
Also, if you come at someone and just throw a general accessibility project at them, you’re going to pay more for the vagueness and ambiguity.
Here’s another thing that will cost you dearly: video.
If you have a lot of videos on your website, it takes a lot of time and energy to have them meet WCAG 2.0 AA.
There’s closed captions (which YouTube greatly helps with, btw) and there’s transcripts but there’s also technically audio descriptions if you follow WCAG to a T (success criterion 1.2.5, check it out) so, yeah, manual work hours are going to balloon the work load and cost.
Even if you choose to forego the audio descriptions, closed captions and transcripts will have your hands full.
If you assess your situation ahead of time, you can better delegate (maybe you offload closed captions to an office assistant who has a little too much free time, eh, eh) and reduce your cost.
Another option: get rid of unnecessary videos.
Standardization and Certification
I get asked a lot about certification. Companies, organizations, and developers always want some kind of plaque to put on the mantle of their website proclaiming they are certified accessible.
The practical equivalent of website accessibility certification is a statement of conformance.
A statement of conformance is documentation issued by a vendor that lists out all of the applicable WCAG success criteria and checks off that the vendor has found that your website, app, etc. has met each.
A statement of conformance available through a few vendors but not all since web accessibility is somewhat hazy and can be subjective.
Sense of Urgency
I know I write in a lollipop tone but don’t let the jovial nature of this article lull you into a false sense of security.
There are vulture-like attorneys out there who team up with one person with a disability and file as many ADA website compliance lawsuits as they possibly can.
They’ll connect with, say a person who is blind, and then have that person go to a website and find a problem with it and then, BOOM! Demand letter or lawsuit delivered to your door.
Rinse and repeat…12, 20, 50, 100, maybe 200 times (not kidding).
I mean these guys are the true disability advocates, right?
Money isn’t even important to them. Accessibility for all is really the ultimate goal.
I can just picture them now. Kind of like Saul Goodman with a hand over his heart being video taped in front of an American flag waving in the wind.
Make your website accessible or Better Call Saul is coming for you.