Adam Akinyemi, Whois Accessible
September 26, 2020
The coronavirus outbreak caused a shift in the usage of digital devices.
As people worldwide become heavily dependent on the internet for essential information, work, school, entertainment, and basic needs such as medication and groceries, it’s clearer than ever that digital inclusion is crucial. Yet people with disabilities have struggled to stay informed, shop, and access critical services online due to text with low contrast and the confusion of filling out lengthy forms without labels – as well as a number of other barriers that make the web impossible for some people to use.
Countries around the world have enacted various non-discrimination and web accessibility laws prohibiting discrimination against people with disabilities in all areas of public life, including jobs, schools, and transportation. Examples of these are the Americans with Disabilities Act (ADA) and Section 508 in the United States, and the European Accessibility Act and EN 301 549 web directive in Europe. These laws mandate that digital content be accessible to individuals with various disabilities, and many of them include deadlines for compliance and specific penalties for non-compliance.
Canada’s Accessibility for Ontarians with Disabilities Act (AODA), for example, mandates that public and private organizations in Ontario make their web content accessible by January 1, 2021 or be fined up to $100,000 and $50,000 respectively every day.
Web accessibility regulation in the US
Around 61 million people in America live with some form of disability – almost 20% of the population.
Title III of the Americans with Disabilities Act (ADA) requires organizations (public and private) that provide public accommodation or commercial facilities to take steps to communicate effectively with customers with disabilities. The Act affects places of lodging, restaurants, bars, places of education, entertainment, etc. and it need not be a physical place. Hence, ADA Title III also requires organizations to ensure online accommodations such as web content and other electronic information technology are accessible by being usable people with various types of disabilities such as visual, hearing, motor, or cognitive disabilities.
For a website to accommodate various impairments, its content must be keyboard accessible, have text alternatives, and follow the international standard, the Web Content Accessibility Guidelines (WCAG) 2.1 Level AA. Non-compliance with WCAG technical standards invites legal action. And, in fact, we’ve seen a significant rise in litigation over the past year.
The lawsuit trend in 2020?
For those that are not following lawsuit numbers, the rate of ADA-based web and app lawsuits jumped from 814 in 2017 to 2,258 in 2018, a 177% increase. They then held roughly steady in 2019. (The Robles v. Domino’s Pizza case remains the highlight case of that year.) The majority of cases related to claims that websites do not work with screen reader software and lack captioning for videos on websites. The most recent WebAIM research report confirmed that, through February 2020, violations were still rampant: 98.1% of the top 1,000,000 websites’ home pages had detectable WCAG 2.0 failures. This report is particularly scary if you consider that only 25% to 35% of possible WCAG conformance failures can be detected automatically using software.
While it appears that website accessibility lawsuit filings decreased in the fourth quarter of 2019, the number of filings went up again for the first three months of 2020. There were signs of diminishing Federal lawsuits during lock-down, but web accessibility lawsuits and demand letters continue to rise in New York, Florida, and California now more than ever. (In California, state-filed lawsuits are being filed under the Unruh Civil Rights Act.) In fact, state-filed lawsuits are now growing so quickly that they’re making up for the drop off in Federal ones. It is safe to say that businesses operating in California, New York, and Florida face double the risk of being hit with a lawsuit as evidenced by UsableNet’s 2020 midyear report. The web accessibility service provider reports that by the end of April 2020, the rate of ADA-based web and app lawsuits filed in Federal court returned to its previous record-breaking pace. The report also affirmed that mobile apps account for 20% of those lawsuits, which can be traced to the increased use of mobile devices to access services, the convenience of apps, and mobile apps’ inclusion in Domino’s pizza accessibility lawsuit in 2019.
It is common for the ADA Title III website and app lawsuits to target retail businesses, hospitality, and the food-service industry more than any other sector. And for the first six months of 2020, retail and food-service industries were targeted the most. These companies tend to have apps or websites that require frequent updates and code changes due to the ever-changing nature of the product/service.
Payouts from past cases are inevitably feeding the cycle of interest in these lawsuits. UsableNet, in its previous report, said that 10 law firms are responsible for more than 82% of suits filed in federal court in 2018. Its 2020 midyear report suggests a few new plaintiff firms have joined in the predatory surge.
Moving forward with web accessibility lawsuits
Although web accessibility has been an issue for many years, many businesses only become aware of the laws when they’re hit with a lawsuit. Trying to fend off a lawsuit by quickly making the website meet the WCAG 2.1 AA standard will be costly and may not work. Several courts have denied motions to dismiss website accessibility lawsuits based on mootness, with Haynes v. Hooters of America as a highlight.
The real solution to accessibility compliance is taking the definitive initiative to comply with technical standards, determine accessibility via user testing and verification, and ensure ongoing compliance monitoring.
Businesses that are subject to ADA Title III must be ready to make their websites or apps accessible to the disabled by following the more frequently referenced and most updated conformance target, WCAG 2.1 AA. It’s also a good idea to provide an accessibility statement on the site to guide disabled users through an alternative way of accessing content and provide a 24/7 accessibility telephone service as a way to receive and act on user feedback.
Including disabled people in user testing is also a very good idea. And organizations should integrate accessibility in their processes by training their IT teams and those responsible for content so that they prioritize accessibility and periodically perform an internal and third-party re-audit of their digital sites.
Digital accessibility is important now more than ever during these COVID-19 times. Imagine not being able to access the web to work remotely, attend meetings, continue your education, shop, find entertainment, and maintain relationships – and having no clarity on how long you’ll be in that isolated state. It is morally essential for organizations to ensure individuals with disabilities can benefit from their digital space like everyone else. Businesses must respond to the unprecedented challenge of Coronavirus by ensuring equal access or they will likely face the reality of surging web accessibility lawsuits under the Americans with Disabilities Act.
Adam Akinyemi is the creator of Whois Accessible, which helps recommend effective paths to organizational accessibility compliance needs.