ADA Website Compliance Explained
In 1990, President George H.W. Bush signed the Americans with Disabilities Act (ADA) into law. The law was designed to prohibit discrimination against individuals because of disabilities. By ADA definition, disabilities are “physical or mental impairments that substantially limit one or more major life activities.” Initially, the law pertained to employment opportunities, access to goods and services, and ability to participate in government programs.
Commercially, the accessibility concerns initially revolved around the access to brick-and-mortar locations. However, in the past 27 years, the Internet has changed the way people consume media, access and purchase goods and services, and gather information. Unfortunately, millions of Americans have difficulty accessing the web because of disabilities.
Per the 2010 Census, 57 million Americans live with disability. Among these, 8.1 million have a vision impairment, 7.6 million have a hearing impairment, 19.9 million have difficulty lifting or grasping things, and 15.2 million have a cognitive or emotional impairment. More than half of these individuals use the Internet. By that account, millions of Americans are being unintentionally disregarded in the user experience of the web. Ultimately, this means millions are unable to participate in the burgeoning economy of the Internet as both a consumer and employee.
In January 2017, the United States Access Board, an independent government agency devoted to accessibility, published a final rule regarding information and communications technologies (ICTs) that changed standards of Section 508 of the Rehabilitation Act and Section 255 of the Communications Act. These changes to the laws are to take effect in January 2018.
In brief, Section 508 refers to accessibility standards of ICTs “developed, procured, maintained, or used by Federal agencies.” Section 255 refers specifically to accessibility enablement of ICTs, such as how a physical technology works with existing assistive technologies like JAWS, NVDA, braille keyboards, and voice-overs.
Though this final rule directly refers only to accessibility standards for Federal agencies, the private sector is being hit by “surf-by” lawsuits. Like “drive-by” lawsuits where plaintiffs seek settlements for incompliant physical structures, plaintiffs are surfing the web with the intent of finding accessibility violations on websites. If violations are found, ADA lawsuits are filed—sometimes with no warning.
It’s important to note that the Department of Justice has not created a definitive standard for website accessibility, but courts have referenced Website Content Accessibility Guidelines (WCAG) for rulings. While the outcomes of the court cases vary state to state, many are interpreting website accessibility as an extension of the existing accessibility standards for physical structures (Title III).
For example, in the recent South Florida ruling of Gill v. Winn-Dixie Stores, Inc., the plaintiff was a visually impaired man and the defendant was a chain grocery store. The judge considered Winn-Dixie’s website a nexus to the physical stores because the website offered coupons, location information, and prescription refills. In addition to this, courts in Wisconsin, Massachusetts, Indiana, Maine, Illinois, Rhode Island, Vermont, Puerto Rico, Connecticut, and New York have declared websites are considered public accommodations under Title III for their contribution they make to the customer experience.
Contrary to the aforementioned rulings, courts in California, Washington, New Jersey, Delaware, Ohio, Alaska, Hawaii, Nevada, Arizona, Oregon, Montana, Michigan, and Tennessee ruled companies that only operate online are exempt from Title III as it currently exists.
What does this mean for businesses?
This means making your website ADA compliant should be a top priority.Here are three reasons why:
1) Millions of people are being excluded from Internet because of websites that are incompatible with assistive technologies. This creates a digital divide between individuals living with disabilities and those living without.
2) By excluding these people, companies are unintentionally opting out of serving millions of consumers.
3) If you become the defendant in an ADA lawsuit, you could pay thousands in legal fees and damages. Likely, the amount you would pay for legal costs could cover an ADA audit and fixes.
How do you become compliant?
There are four steps to take to become compliant:
1) Assess whether your website is compliant with the guidelines of the most accepted standard of compliance, WCAG 2.0 Level AA. While Level AAA is considered the most accessible, satisfying all criteria is not always possible.
2) Conduct an internal audit to see a baseline of compliance. You can easily conduct an audit using a number of free tools like WAVE,AChecker, and Functional Accessibility Evaluator (FAE). Our preferred tool is the FAE developed by the University of Illinois, but it is important to note that no audit tool has been standardized by a Federal, State, or Local government, so results may vary from tool to tool and it may be useful to check several.
3) Seek assistance from a third party with experience auditing websites. Smooth Fusion, for example, conducts audits of websites using publicly-available tools, an internal proprietary tool, and individuals who use assistive technologies daily.
4) Have your web development partner or internal development team correct the violations uncovered in the audit.
How do you stay up to date on compliance?
After your site meets compliance, it is important to stay up to date on ADA and changes to the law. Since much of the interpretation of the law is evolving, reviewing legal articles on Lexology will keep you current on recent court proceedings. Also, the World Wide Web Consortium (W3C) publishes weekly articles and blogs about court proceedings, events, industry-specific information, and development resources.
Read Part 2: 5 Common Website Accessibility Violations
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