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 a mouse 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 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 deal 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.
The ADA implicates private entities which mean you and I and mega corps and innocent little churches can all run afoul of it.
And just FYI, the 15 or more employees thing is for Title I which 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 website accessibility for federal agencies and departments. And, for our purposes, Section 504 sweeps in recipients of federal funding (like universities) to be included in that.
There are a few other laws and certainly some state laws to be mindful of, but those are the two 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 considered accessible and thus in compliance with your country’s laws.
There are a lot of other legal details but blah, blah, blah, right?
WCAG 2.0 AA (and WCAG 2.1)
First thing I always bold is WCAG is NOT the law.
And, really, it was never meant to be the law. It was written as web standards for accessibility.
Writing law is ENTIRELY different from writing web 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.
Alright, that was boring and maybe unnecessary but I’m a thorough guy and I felt like context was needed with WCAG.
WCAG 2.0 AA is continually referenced as a good standard for accessibility across the world.
There are 38 individual success criterion (AKA 38 things to check off that your website meets) that comprise WCAG 2.0 AA.
Some of these 2.0 things, even in level AA, are cumbersome and expensive to meet, but I think on the whole, WCAG 2.0 AA does a great job and the fundamentals of it should be incorporated into eventual law.
As for now, the best case scenario for your website is that you meet all of the success criteria of 2.0 AA.
But that’s optimally speaking. Achieving that 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 (we want certainty, damnit!).
As for 2.1, the W3C just released that hell onto us in the summer of 2018 and some of the success criteria are very much aspirational vs. practical (yet another reason why WCAG shouldn’t be default law).
Practical vs. Aspirational
Some parts of WCAG 2.1 and 2.0 are more like perfect world scenario than it is realistic to require of every last entity with a website.
While, yes, we want more accessibility, you’re going to have a frustration of purpose if you require more than people are capable of giving.
Unfortunately, some lawmakers have already wholesale adopted 2.1 into their requirements.
Most website accessibility agencies themselves don’t meet this now.
My rule for lawmakers: Try it before you require it.
This stuff costs money and not like $150 on Freelancer or Upwork money.
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 (I said same extent, not same way).
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 38 WCAG 2.0 AA success criteria.
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 another Medium article here, I talk about the big points of emphasis from WCAG 2.0 but I can tell you the biggest one right now:
Yes, alt text. For the love of god, update your alt text to be descriptive and convey the meaning of all your your meaningful images (not decorative ones that only contribute to your web design).
The majority of ADA website compliance cases are rooted in missing or insufficient alt text. Once they have you here, they bolster their case (and make you look bad) by tacking on as much as they can.
Alt text alone can 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.
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:
AN ACCESSIBLE WEBSITE YESTERDAY!
So your tight pants (cite: Fallon, Jimmy) don’t get sued off.
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.)
The two main guys who actually provide solutions in this arena are AudioEye and Accessibe (Accessibe.com since Google just thinks you’ve misspelled accessible when you search for them).
AudioEye is pretty damn good but pretty damn expensive. Like $6,000 annually is probably the minimum starting point for a small-ish website.
And, yes, that is annually.
From what I can tell (from speaking with them at CSUN and talking with one of their reps on SKYPE), they really do full remediation of your site and that remediation takes anywhere from 1–3 months depending on what you need done.
I just don’t see how that annual cost is going to hold up for all but the corporate account types but #wellsee.
As for Accessibe, I’ve spoken with their reps multiple times. This is a well-intentioned group of guys who are really trying to make a difference with lower priced app/software. They’re doing some impressive stuff with AI BUT I used their free trial and instantly accessible my website was not.
Instant accessibility just isn’t a thing yet, boys and girls.
Real remediation takes a few minutes, especially for more larger and/or more dynamic websites.
Another quiet, under the radar fact: the on-site accessibility toolbars both of these vendors provide are redundant with a lot of screen reader technology functions.
These quick reviews aren’t too say anything bad about these two early movers because everyone is still trying to figure this stuff out.
But this article is here to give you the insider’s point of view and insider’s point of view you shall have.
There’s not an easy as pie, 1–2–3 solution for web accessibility just yet.
I’m working on it. I’m working on an all-in-one Wordpress accessibility framework with all the bells and whistles.
But as far as I can see after going 6–7 pages deep on common accessible WP searches, there aren’t a lot of good options for nice looking, fully accessible Wordpress themes.
What you usually get is the ambiguous “more accessible” and “meets WCAG 2.0 AA” tags which sounds nice but then your eyes narrow and then you’re like, yeah, but will I really be accessible?
The answer is, save for one ugly theme I found, no not really.
That said, more accessible is better than no 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.
AudioEye is good but very expensive and I’m telling you right now, you can get what you need from contractors at a one-time cost.
(Side note: You still have to upload content in an accessible manner even after the initial project is completed.)
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) but there’s also audio descriptions (success criterion 1.2.5, check it out) so, yeah, manual work hours are going to balloon the work load and cost.
If you access 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.
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.
I totally get the impetus behind the question but there’s nothing out there that does what you want it to.
Update: My own company, Accessible.org will starting July 7.
The best, most robust option in the world would be having an iron-clad indemnification clause with a reputable web accessibility agency that would actually pay out if you incurred damages for a lack of accessibility.
That would amount to practical, real-life certification.
Hard to get that kind of certainty though when there’s no actual law! (US)
WCAG is commonly referenced as the standard but as I mentioned earlier, it’s not fit for a legal standard.
The good news is I’m working on both this; I’m working on extracting the essence of WCAG 2.0 and transforming it into a workable, easily identifiable and checkoffable legal standard.
Update: The new standards will be called the Web Accessibility Standards or (WAS).
This new standard is the basis for which I currently advise clients but it’s taking some time to formalize for public consumption.
Once there is standardization, then there can be certification that means a damn.
Right now you just have independent agencies certifying that they have worked on your site and then asking you to put their badge on your site so they can get a link back from you.
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 for real take one person with a disability and leverage them to file as many ADA website compliance lawsuits as they possibly can.
They’ll connect with, say a blind person, 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.