One of the biggest challenges in digital accessibility is the uncertainty of how to comply with accessibility laws. This comes in the form of uncertainty over what standards the ADA requires to make digital content accessible, whether ADA lawsuits can be filed, and which solutions actually help make a website accessible. Experts in the legal and accessibility fields have had quite a bit to say about how the digital accessibility landscape is shaping up to help ease that uncertainty. Here’s where digital accessibility compliance is headed in 2021, and how you can prepare your company.
More legislation isn’t necessarily the answer
Attorney Conner Eversole in Colorado says, “The problem many businesses face is a lack of general awareness of what they must do to comply with the ADA with respect to websites…Though the ADA does not provide official guidelines, the WCAG 2.1 AA is the standard many courts have looked to with regard to website access and the ADA.”
In an effort to solve this problem, three US Representatives re-introduced the Online Accessibility Act in Congress as H.R. 1100 (originally introduced in October 2020 as H.R. 8478). However, this bill falls short in a number of ways. This proposed legislation focuses narrowly on “consumer facing websites and mobile applications owned or operated by a private entity.”
Well-known disability rights lawyer Lainey Feingold sees this bill merely as “backlash legislation against a certain type of lawsuit filed against private companies,” that “puts at risk efforts to use the law to increase accessibility of other technology and protect civil rights of disabled people in the digital world.” She views the ADA as sufficient as it is because it has been strong enough to hold up despite rapidly changing technology over the last 30 years. Feingold says, “When the ADA was passed there was not a single consumer-facing website. Yet the law has proven strong and flexible enough to recognize that a disabled person’s civil right to participate in all aspects of society must include participation in the digital world.”
Also, reducing lawsuits for the sake of reducing lawsuits doesn’t necessarily mean websites are more accessible. The proposed legislation reduces the instances of people filing digital accessibility lawsuits only because it forces people who cannot access those websites to file a complaint with the website owner and wait 90 days for a response before they can file a lawsuit. According to Feingold, “The Online Accessibility Act does not allow people with disabilities to file a lawsuit about an inaccessible website or mobile app unless they first exhaust time-consuming administrative procedures.” That’s in addition to the TWO YEARS it gives the US Access Board and Office of Management and Budget to adopt regulations, and additional time for the Department of Justice (DOJ) to adopt new procedures for handling complaints.
This drawn-out process would also limit the option for a collaborative approach to accessibility lawsuit resolution known as structured negotiations. Feingold developed this collaborative method, in which the defendant and plaintiff sit down together to determine how the defendant can make their digital resource accessible. This method upholds the law without the need to file a “single lawsuit.” Structured negotiation starts with a legal claim, but the Online Accessibility Act does not allow for a legal claim until after a lengthy formal complaint process.
DOJ maintains the ADA covers websites
The ADA does not name websites specifically because the internet was not widely used by the general public in 1990. However, the Department of Justice (DOJ) has held that the ADA covers “effective communication” by whatever method that takes place, including websites. As early as 1996, Deval L. Patrick, Assistant Attorney General, Civil Rights Division, wrote in a letter, “Covered entities under the ADA are required to provide effective communication, regardless of whether they generally communicate through print media, audio media, or computerized media such as the Internet. Covered entities that use the Internet for communications regarding their programs, goods, or services must be prepared to offer those communications through accessible means as well.”
Reasons for increased digital accessibility demand letters
Because the internet gives people access to just about everything from consumer products to housing options to education, plaintiffs have started referencing laws other than the ADA to support their lawsuits. Nearly any law aimed at preventing discrimination could apply to website or mobile app discrimination lawsuits. According to Michelle McGeogh, a defense attorney in Baltimore, “website accessibility demands are also becoming more varied as plaintiffs begin to rely on authority outside of the ADA to support their claims. State court actions are proliferating in states such as California with statutes that allow for damages beyond attorney’s fees. Claims against real estate companies and mortgage lenders are now common, based upon allegations under the Fair Housing Act, for example.”
Additionally, the Domino’s Pizza accessibility case brought mobile apps into the spotlight as well. Says McGeogh, “the Ninth Circuit’s ruling held that Domino’s website and mobile app must comply with the ADA to make online services fully accessible to the visually impaired. [S]ince the Supreme Court’s denial of Certiorari, many federal ADA digital [accessibility] cases now claim businesses’ mobile apps are also inaccessible.”
Quick-fixes won’t solve the problem
Many organizations are searching for the quickest and easiest solution to make their websites and resources accessible. There are a number of companies that offer “solutions” that plug into existing websites and claim to make them instantly accessible and compliant. Some of these “instant solutions” claim to identify and add tags to your digital content, which assistive technology then uses to identify what’s on the page. That info is passed on to the end-user. However, these “instant solutions” can only identify and add tags to items that are already coded specifically to allow these solutions to identify the website elements. While incorrectly coded elements may look fine to sighted users, they won’t show up correctly to technology, whether it’s assistive technology, or a plug-in, or an overlay.
Additionally, many visual elements like graphs, charts, and images depend on context to make sense. While plug-ins and overlays might identify that an image is on the page, and some might even use AI to identify the theme of an image, it cannot identify contextual information like the significance of the image. All of that information needs to be coded into the underlying source code first.
According to Gina Bhawalker, principal analyst Forrester Research, Inc., automated overlays and plug-ins “can only detect and resolve 50% of accessibility defects at best, and sometimes less. Many accessibility checks require human intelligence. While automation can detect whether alt text is missing on an image, it can’t tell you whether the alt text does a good job conveying what the image depicts and means in context.”
Top disability rights lawyer Lainey Feingold states that plug-ins and overlays are exactly what the ADA and WCAG are designed to avoid. They merely skate around compliance laws without any consideration for how an assistive technology end-user actually uses a website. According to Feingold, “These tools do not focus on the needs of people with disabilities to participate in the digital world. And they do not involve disabled people in creating the accessible technology and content they need. Instead, they leave people with disabilities out of the equation and ignore well-documented evidence that installing one line of code does not eliminate barriers to digital inclusion.”
In fact, hundreds of accessibility experts agree that automated solutions like overlays are not acceptable solutions. Industry experts signed a petition recommending against such overlays, stating “We will never advocate, recommend, or integrate an overlay which deceptively markets itself as providing automated compliance with laws or standards.” They even specifically mention several ineffective products and call for their removal, saying, “More specifically, we hereby advocate for the removal of AccessiBe, AudioEye, UserWay, User1st, MK-Sense, MaxAccess, FACIL’iti, and all similar products and encourage the site owners who’ve implemented these products to use more robust, independent, and permanent strategies to making their sites more accessible.”
Defense lawyer Richard Hunt, who is often on the opposite end of the legal spectrum from Feingold, agrees with her about the ineffective nature of overlays. Hunt points out, “If your business wants to avoid getting sued under the ADA because of an inaccessible website an accessibility overlay or widget isn’t going to help you. I can say this with some certainty because in the last two weeks alone five lawsuits have been filed against businesses that use an accessibility widget or overlay on their websites.”
Proactively plan for digital accessibility.
Ignorance of the law is famously no excuse, even when the law appears vague. The best way to prepare yourself for potential future laws or lawsuits is to actively evaluate your website for accessibility using the most updated version of WCAG and by consulting experts. In the absence of specific digital accessibility guidelines, case law like the Robles v Domino’s case almost always points to WCAG as the required standard. Though trending digital accessibility topics center around uncertainty, experts agree that WCAG provides solid, usable accessibility strategies.