June 1st, 2021 by Miles Peterson
You may have been hearing a bit of buzz about any or all of these phrases and wondering how does this apply to you and your business? First, we want to briefly touch on some of the history here, and then we'll dive in a little deeper.
In 1990, the Americans with Disabilities Act of 1990 (or ADA) was passed, a civil rights law that prohibits discrimination based on disability. Among other aspects of the law, it imposes accessibility requirements on "public accommodations" (this is important for later).
In 2010, the U.S. Department of Justice adopted revised, enforceable accessibility standards called the 2010 ADA Standards for Accessible Design. This revision encompasses electronic and information technology, such as websites, and requires that they be accessible to those with disabilities.
Who Needs to Be Compliant?
- Under Title I of the ADA, any business with at least 15 full-time employees that operates for 20 or more weeks every year is covered by the law and subject to its requirements.
- Under Title III, businesses that fall into the category of "public accommodation," such as hotels, banks and public transportation, are also required to comply.
However, websites (as well as mobile apps) are now considered "places of public accommodation". So just because you're a small business with only a couple of employees does NOT mean that you qualify for an exemption under Title I.
If there is anything even remotely commercial about your website, then you are almost certainly subject ADA compliance guidelines and should conform to best practices for accessibility requirements.
What Are the Best Practices for Accessibility?
The DOJ has reaffirmed that the ADA does apply to websites, but the ADA does not have a technical standard for what constitutes meeting this requirement. In the absence of a technical standard, the Web Content Accessibility Guidelines (WCAG) are consistently identified and upheld as providing an acceptable level of accessibility. The WCAG includes three levels of conformance: A (bare minimum level of accessibility), AA (target level of accessibility meeting legal requirements) and AAA (exceeds accessibility requirements).
California's CCPA legislation explicitly specifies the "WCAG version 2.1 of June 5, 2018", but does not specify the level of compliance (A, AA, or AAA).
The "generally recognized industry standard" of WCAG 2.1 AA conformance level is the most widely adopted and is currently also the de facto industry standard, and so this is the current target for meeting best practices for accessibility.
How Do I Check to See How Well My Website Performs?
There are a number of somewhat automated processes that can be used to check and review your website, but these are not 100% reliable. For a very basic overview, you can use the Edge or Chrome browser's Developer Tools to run a Lighthouse audit against the home page of your website. This tool automates testing against WCAG 2.1 Level AA, and will give you a score out of 100. Worth noting is that most estimates put automated testing tools (which includes testing suites such as Lighthouse, Wave, Axe, IBM Accessibility, etc) as handling anywhere between 25 to 50% of the needs.
These tools are a good start for addressing the low hanging fruit, but the best method is to have a professional, third-party accessibility expert manually evaluate and test every page of your website. You should expect that, for most websites, just the audit alone may run 4- or 5-figures in cost. Implementation of the recommendations as a result of this audit would be completely separate expense.
Someone Wants to Sell Me an “Instant Accessibility Fix”, Is That Too Good to Be True?
Yes, that's too good to be true. There's no possible method to have a plugin that instantly brings your site into conformance. Besides the security vulnerability of trusting third-party code, the majority of these supposed "fixes" work by overlaying the site with an "accessible" version, which then runs afoul of "separate but equal" problems (while also not bringing your site into conformance).
If someone is trying to sell you an instant fix they are almost guaranteed to be attempting to scam you and profit off of your uncertainty related to these requirements.
What Happens If My Website Is Not Accessible?
The primary risk is that you will subjected to a demand letter or a lawsuit stemming from the fact that your website does not conform the accessibility standards. The ADA is a "strict liability" law, in that there is no excuse for non-compliance. In addition, just because you were sued once doesn't mean you can't get sued again by someone else. Settlements in ADA website compliance cases can run anywhere from several thousand up to tens of thousands, depending on a number of factors including the size of the business.
Why Is This an Issue All of a Sudden?
While the requirements have technically existed for over a decade, until recently there were no clear guidelines for implementation. California's passing of the CCPA and specifically stating a guideline helped push the issue forward, as did the continued development and widespread adoption of WCAG conformance recommendations. In addition, the rise of fairly good automation for detecting violations has made it drastically easier to find targets.
How Can I Mitigate My Risk Factors for Website Accessibility Concerns?
The plaintiffs for these cases typically use automated testing processes to find good targets for demand letters and/or lawsuits. Therefore, at the very least you should strive to pass automated testing procedures. In addition, you should preemptively include a good website accessibility statement on your website as the DOJ typically mandates them in a settlement agreement.
What Service Can Atomic8Ball Offer towards This Effort?
We can bring your website into conformance with automated testing processes, perform regular audits to ensure that no changes to the site bring it out of conformance, and provide an accessibility statement page that includes a feedback process for end-users to report any issues that they may be experiencing or that could be further improved.
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