The ADA Checklist: Website Compliance Guidelines for 2019 in Plain English
- Title III of the Americans with Disabilities Act is being interpreted to include websites as “places of public accommodation”
- Websites with significant inaccessible components can be seen as discriminatory against persons with disabilities, in violation of Title III of the ADA
- The ADA is a strict liability law which means there are no excuses/defenses for violations (e.g. ignorance, web developer is working on it, etc.)
- No current legal prescription exists for web accessibility but WCAG 2.0 AA has been commonly referenced as a guide
- Newly published Web Accessibility Standards (WAS) make accessibility easier
- Plaintiff’s lawyers are filing ADA lawsuits as fast as they can
Well here we are.
You’re over there trying to figure this stuff out so you don’t get sued. And I’m over here writing at 4:40 am because I can’t sleep.
Okay, for the record I did watch Bill Burr on Netflix before this but that’s besides the point.
Anyways, let’s quickly make ADA website compliance easy on you so a wild pack of opportunistic lawyers doesn’t make a paper airplane demand letter and float it on over to your desk.
(Author’s note: I highly recommend you make it to the end of this article. It’s kinda long but the next 8 minutes will save you thousands of dollars.)
Before I start, let’s clear up two terms that are closely intertwined but distinct: ADA website compliance vs. website accessibility.
The law that primarily governs accessibility is The Americans with Disabilities Act (ADA). Even though it doesn’t mention websites anywhere, Title III of the ADA has been been interpreted by U.S. courts to apply to websites.
For our websites to be ADA compliant, they need to be accessible.
Website accessibility can mean two things depending on the context: 1) the process of making your website so that its content and functions are accessible to those with disabilities, or 2) how accessible your website is.
Think of it this way:
The ADA is the legal side, are you in compliance with the law? And accessibility is the technical or developmental side, how well can persons with disabilities access your website?
The next question is: how do we make our websites accessible?
The answer is to make it so people with disabilities can enjoy the full use of your website; they can access content, navigate your website successfully, engage with different elements, etc.
U.S. courts and the Department of Justice (DOJ) have frequently referenced the Web Content Accessibility Guidelines (WCAG) 2.0 Level AA success criteria as a standard to gauge whether websites are accessible. The WCAG 2.0 AA success criteria are comprised of 38 requirements, individually referred to as success criterion.
If your website meets all 38 of those success criteria, you’re in great shape. But, even if you don’t, your website can still be accessible. The most important thing is that you take care of the big ticket items.
We’ll talk more about these items in just a few seconds.
For now, let’s talk about the most important thing you can do to avoid that sinking feeling of receiving a threatening legal letter in your mailbox.
Take Action, Jackson!
The first thing you need to do is do something.
That’s always my professional legal advice (yes, I’m an attorney too but the good kind).
So you need to do something. What does that even mean though?
That means don’t make compliance out to be some huge project where you divide it into a million small projects where associate interns are reporting back to senior interns who shuffle a bunch of papers and then your social media guy gets involved for some reason and nothing gets done.
Instead of the normal pretend-to-get-stuff-done maneuvering above, start by adding alt text to every meaningful image on your website. If your website has a lot of pages with images, apply alt text to the homepage and then the five most trafficked pages on your site and work from there.
After that, your best option is continue on with the bullet points in the newly published Web Accessibility Standards (WAS) from Accessible.org:
Either PDF above has the bullet point checklist on how to make your website accessible you were after.
The Curious Question on Standards
Why the Web Accessibility Standards (WAS) if WCAG is commonly referenced?
WCAG is hard.
It’s long, difficult to understand, and you start feeling lost as you read it.
Checkout the WCAG 2.0 AA success criteria to see how bad it gets.
WAS is newly published (June 2019) and incorporates most of the fundamental principles of WCAG but is easier and simpler to deal with.
What makes a website ADA compliant is an unsettled matter of law but Assistant Attorney General, Stephen E. Boyd, has stated in a letter of Congress that entities (almost all of us — individuals, businesses, companies, organizations, etc.) have flexibility in how to comply with web accessibility.
This means you don’t have to specifically make your website accessible one exact way, but you do need to make it accessible.
WAS is way easier, it takes significantly less time to figure out and is more binary (YES/NO) so it’s easier to tell if you’re compliant.
Web Accessibility Standards (WAS) Preview
Here’s a skeleton outline of WAS:
- Descriptive text
- Nested headings
- Color alone does not convey meaning
- Clear forms
- Uniform labels
- Clean code
- Zoom text
- Color contrast ratio
- Distinctive links
- Consistent layout and navigation
- Descriptive alt text
- No images of text
- Text transcripts
- Closed captioning
- Table data
- Extraneous documents
- No automatic pop-ups
- No automatic video or audio
- No unexpected changes
- Pause updating/refreshing content
- Adjust time limits
- Important submissions
- Keyboard only
- Focus indicator
- Skip navigation
- Search function
Here is the full web page version of WAS.
You definitely earned that victory lap you just took around the office by getting through the 1-minute informational gauntlet above but let’s not get ahead of ourselves here, you’ve got at least another 14 minutes of hard labor to finish off this whole “make-your-website-accessible” thing.
Some quick notes:
Accessibility is not a redesign your website set-it-and-forget it thing. A very big chunk of accessibility is in how you upload media and create content. Yes, coding is a very important part of the process but it’s not the end of the story.
For example, every image, video, or audio file that you upload needs to have an alternative means of access (e.g. alt text, closed captioning, transcript).
Another important note: there is a separate set of legal best practices to web compliance as well: training, having a web page explaining your accessibility policy, appointing an accessibility coordinator, hiring an independent consultant, and inviting feedback.
For smaller businesses, you’ll likely go without the coordinator and consultant formalities above due to budget constraints, but the bigger you are, the more thorough I recommend you become with your approach to web accessibility.
Something else that will save you thousands of dollars: If you want someone to remediate (fix) your website, don’t waste your money paying for scans and audits from companies that don’t actually offer remediation.
A little known fact is MOST website compliance agencies DON’T actually fix your site, they just tell you what’s wrong.
Yes, you read that right. Most compliance companies don’t do compliance. Always ask if they, themselves, do remediation (if not, they’re simply referring you to a developer, you’re paying extra for no reason and they’re earning a commission off you).
Also, look out for automated scans or audits! They only tell about 1/3 of the accessibility story.
At best, automated checks are supplemental guides but what you really need is an accessibility expert to manually review your site — if an audit is what you’re after — and most agencies won’t offer manual audits because it takes hours of time and real effort and (GULP!) potential liability.
I could write an entire article just on how to go about remediation but the main point here is if you are looking for a DFY (Done For You) solution, be careful that you aren’t just getting an audit — and if you do get an audit, get a manual audit.
P.S. There are companies that actually charge thousands of dollars to run an automated scan (remember these only cover about 30% of accessibility) and send you a report.
What to do next
The most common complaint in demand letters and lawsuits is a very easy one to fix: alt text.
With alt text, you’re just changing the value of your alt tags to convey what an image represents.
Another big ticket item is having closed captioning on your videos. If you have your videos hosted on YouTube, adding closed captions is fairly easy to do.
Right off the bat, these are two very simple yet very big steps towards becoming accessible/ADA compliant.
Remember, updating your website to become ADA compliant is a process, not a flip of a switch so the best way to become compliant is to start doing what you can and not get caught in planning and procrastination mode.
ADA website compliance lawsuits are being filed like crazy right now. 2018 was a record year for number of lawsuits filed and 2019 is going to smash that record.
The answer to preventing a lawsuit is easy: make your website accessible; the solution, however, is not (especially because 80% of the supposed providers don’t actually offer solutions!).
And while you figure out your plan of action and are in the process of making your website accessible, you might get hit by a lawsuit.
In February of 2019, I published The ADA Book which gives you a step-by-step blueprint of how to give your website a cloak of accessibility while you undergo the remediation process.
This cloak gives you the best chance of keeping those ravenous plaintiff’s law firms from choosing you as their next not-so-friendly letter recipient.
Settlements on ADA website compliance typically range from $5,000 to $50,000.
Remember, the best course of action is to attack website accessibility NOW. Do not wait on this or it could cost you.
And here’s the kicker: if you do get hit with a demand letter and end up settling, you still have to make your website accessible.
Want another kicker? Just because you’re sued once doesn’t mean you can’t get sued again by someone else (side note: there is a strategic tactic that can usually prevent this).
How about a third kicker on your fantasy football team? Here it is: the Americans with Disabilities Act is a strict liability law which means THERE ARE NO EXCUSES to non-compliance!
Working diligently on your accessibility but still missing a few things? Too bad, you lose. Pay up.
Hired a reputable web development agency last week? Too bad, you lose. Pay up.
Just heard website accessibility was a thing yesterday? Too bad, you lose. Pay up.
Strict liability means the only saving grace is compliance which means your website is currently a sitting duck as-is.
Corporations and small businesses alike are being targeted.
Obviously deep pockets are a target but you may wonder why small businesses are also pursued. It’s because they’re easy wins and can’t afford to put up much of a fight.
Get started. NOW.
P.S. If you do get sued, if you immediately remediate your website, you may be able to get the lawsuit dismissed on mootness (there’s no longer anything in dispute, i.e. plaintiff’s are arguing your website is inaccessible but you’ve already made it accessible). This definitely does not mean you should wait to fix your website but it does mean you may have an out.