The Americans with Disabilities Act (ADA) Website Compliance
Lack of Communication about a Just Cause creates an Unjust Outcome
With literally hundreds of ADA website compliance lawsuits being filed every month, many businesses are experiencing the crushing effect of what feels like legalized extorsion by attorneys and digital marketing firms taking full advantage of a chaotic environment.
To be precise, last year alone there were 2,285 ADA website lawsuits filed in federal courts across the nation, an increase of a 181% from 2017. The majority of lawsuits originate in Florida and New York.
So What is ADA Website compliance?
The new regulations for web accessibility require websites to provide online experiences that are accessible to everyone, including people with disabilities. Simply put, the regulation means that websites must accommodate visually and audibly impaired users, creating content suitable for screen-readers, using descriptive links, and making website actions easily accessible via a keyboard.
So What’s at Issue?
The fact that websites need to comply with ADA regulations?
Of course not!
ADA website regulations are a win-win for everyone.
For starters, there are nearly 50 million Americans with disabilities. Providing access to those among them who would otherwise not have access to websites couldn’t be more positive. Notwithstanding, for all those businesses that have websites, it means a whole new universe of potential customers.
So What’s The Issue?
Communication. Communication. Communication.
As far as we can tell, the only information the average layperson hears about regarding ADA website compliance comes from news about ADA non-compliance lawsuits. Sure, if you’re looking up the subject, there’s a goldmine of information on the Internet. But one needs to know about it to research it, or be an attorney somehow engaged in it.
But if you’re just minding your own business, especially a small business, getting served with a lawsuit from left field is akin to walking across the street and getting hit by a Mack truck. And that’s just not right.
As digital marketers, we work hard to keep ahead of the latest developments. But even we, and many of our other digital marketing friends, are learning about this from readinf about the rash of lawsuits in the media.
Brick and Mortar versus Internet Visitors.
If you have a restaurant and someone can’t access the dining room, nothing can be more visible. You feel bad for the disabled individual and want to make good on it. The more you learn about how to address the situation, the more you recognize the need to do so immediately. It is a cost of doing business.
When you’re dealing with the Internet, despite all the fancy digital analytics to which we have access, and all the website visitor data we track, there is nothing out there that tells us that a visitor has a disability.
So yes, perhaps the “out of sight out of mind” syndrome is no excuse.
But huge, inescapable, out of the blue lawsuits that can crush businesses isn’t an excuse for not communicating the law – and communicating it with clarity.
The fact is, most businesses aren’t even aware of ADA website compliance regulation — unless they’ve been served with a lawsuit.
Aside from a summons a few hours before being served the lawsuit, they come without advanced warning, without notifications, without announcements – without any indication that one is in violation of anything. This makes just about every organization, big or small, is a sitting duck just waiting for a lawsuit to happen.
ADA Website Compliance: A History Steeped in Confusion
It’s important to note that the whole ADA website compliance issue has been confusing from the start. The Department of Justice (DOJ) has been back and forth on the issue for more than 20 years. First issuing rulings, then withdrawing them, then taking somewhat positions on the issue that most non-attorneys have trouble understanding. For example….
The Department has taken the position that “the absence of a specific regulation does not serve as a basis for noncompliance with a statute’s requirements.”
There you have it. The average Joe and Jane are totally confused.
Bee that as it may, as the latest accessibility changes are still fresh, subject to interpretation, and outside the purviews of daily business life, most organizations have no idea they even exist. And it’s precisely this lack of familiarity and clarity that has made the ADA website compliance environment the perfect storm for lawsuits. And that is what we call an unjust outcome for a just cause.
So Now What?
As if that isn’t enough, the current ADA rulings are problematic. Putting aside the relative obscurity of these rulings among today’s business community, the confusion surrounding them, and the legal exposure, there is still no sure fire way to be deemed fully ADA compliant.
Central to the Issue
At the moment, the level generally relied on by the DoJ and the courts is what is called Level AA (WCAG 2.0 AA). This to say that if a website approaches Level AA compliance, it is relatively safe from legal exposure. Again, it is not absolutely safe. That’s because even though Level AA provides clarity, it is not all black and white, which means that, while exposure is minimized, a business is still technically at risk.
Having successfully assisted one of our clients who was recently served with a lawsuit, we learned a lot about ADA website compliance. As part of the process, we called the ADA and found them to be particularly articulate, considerate, and generally sympathetic to what is occurring in the marketplace.
We learned directly from them that achieving 100% compliance is not truly achievable – at least today. That the unintended consequence of this is that despite any business’ effort to meet ADA compliance, there is no official body or institution, including the ADA, that will officially certify that a website is actually ADA compliant.
But one can obtain a “certification seal” that indicates ADA website compliance, although it is not issued by the ADA, nor is the site reviewed or certified by the ADA.
Recognizing that the ADA website legislation itself may be justifiable, but that the growing wave of litigious practices toward businesses is not, we can only conclude that one’s best possible response to the situation is prevention.
This means taking every step to attain as close a proximity to Level AA (WCAG 2.0 AA) as possible — as soon possible.
If the first task is to avoid exploitative attorneys, the second task is to avoid exploitative digital agencies who take equal advantage of the current situation by charging exorbitant fees.
Be that as it may, as virtually all organizations are subject to these new regulations, it is a roll of the dice in terms of who will be served with the next lawsuit. All we know is that once a business is served with a lawsuit, the costly infection immediately begins, making vaccination the best remedy.
While the cost of achieving Level AA compliance is not negligible, it need not be crushing, certainly for a website built on a basic Word Press CMS platform and not overly designed. We recognize that some sites may require more attention, especially if they’re visually complex, content heavy, include lots of imagery and video, integrated apps, etc. or use proprietary CMS platforms.
But even then, there are those who seek to take advantage, and others who seek to solve a technical issue reasonably and fairly.
At Campaign Precision, we believe there should be a just outcome for a just cause. And we have put in place a process for moving businesses toward ADA website compliance quickly and cost effectively. Please feel free to give us a call.