The past decade has seen a dramatic increase in organizations being taken to court over issues of accessibility on their websites and mobile apps. According to the CDC, 26% of the US adult population is living with a disability. This figure is expected to increase as the baby boomer generation continues to age.
As the number of people with disabilities grows, the number of Website ADA compliance lawsuits is sure to grow along with that. Brands need to take note now of ways they can stay out of litigation.
I had the opportunity to speak with an expert on this topic, Steve Barnes, who is the president of Barnes Creative Studios. Barnes specializes in adding accessibility to one of the most difficult pieces of the website puzzle… third-party media.
Why Do Brands Need to Know About Web Accessibility?
Barnes: Brands need to know that there is no quick fix and non-compliance can be costly as one in four of the market has a disability of some kind. Why would you not want to interact with them? The journey should start with proper education on what they need to do with their websites. There are many outlets that can help with proper guidance. Don’t fall for the ad at the top of your latest search for accessibility.
Brands also need to realize that a website fix does not address third party elements like Matterport virtual tours, YouTube videos, etc. The latter being very important for a large number of websites. Content is the fuel that drives context on a website. That same context needs to get through to disabled users when they use your website. This means fixing your website means “fixing” everything on your website. If a lawsuit comes your way and you just fix the text elements and alt tags…they can come back again and attack what you left not remediated. It is so much cheaper to address accessibility from the start.
Related Article: Designing Diversity, Inclusion and Accessibility Into Web3
What Are the Ramifications of Not Complying?
Barnes: Defendants in ADA lawsuits typically pay plaintiff's legal fees, defense costs, plus their own web accessibility auditing and remediation expenses. Brand sentiment is another factor that should be considered as the legal action against a sensitive group could lead to significant brand damage.
If you believe the internet, the path to accessibility is a simple line of code added to a website for $49 a month. This is a tool referred to as an “overlay.” At this time, the overlay is not a wise choice and considered by many in the accessibility community as snake oil. Companies are expected to spend $10 billion this year on design vendors and service providers that provide accessible solutions, according to Forrester.
Case in point: for multiple years blind advocates were filing many complaints against the payroll powerhouse ADP. Instead of properly fixing accessibility issues which is costly, they chose to install said overlay. Plaintiff’s took them to court with the complaint and were claiming they experienced with the overlay:
- Links do not work.
- Screen reader users have difficulty submitting responses.
- Improper reading order.
- Unannounced state changes.
- Edit fields, graphic links, and drop-down menus either unlabeled, inappropriately labeled, or otherwise difficult to interact with.
- Inconsistent organization.
Any one of the plaintiffs’ complaints would be a serious WCAG 2.1 violation.
Disability Rights Advocates (DRA), the firm representing the plaintiff (Lighthouse For The Blind), is well known for groundbreaking cases related to accessibility. These cases include physical access, accessible voting, education, transportation and digital accessibility lawsuits such as White v. Square, NFB v. Scribd, and the granddaddy of digital accessibility litigation, NFB v. Target. Most importantly, DRA is known for cases that make a difference. DRA is not a drive-by accessibility plaintiff firm.
This statement from the settlement is important for those using overlays to see:
“Accessible” (or “Accessibility” or “Access”) means that blind and low vision individuals have independent access to the same information and equivalent ease of use of functionalities available to sighted individuals via the Website or Mobile Apps. For the purpose of this Agreement, “overlay” solutions such as those currently provided by companies such as AudioEye and AccessiBe will not suffice to achieve Accessibility.
Cases are expensive. In another case, Target agreed to settle a lawsuit alleging that its website was not accessible to the blind, agreeing to improve the website and pay $6 million into a “Damages Fund” for members of the class-action lawsuit. The court also awarded about $3.7 million in attorney fees. The best place to follow what is happening in the courts is the robust digital lawsuit catalog which is up to the month from Accessibility.com. “Website accessibility lawsuits continue to steadily rise month over month and year over year,” said Reeve Segal, attorney.
Here are the number of ADA-based cases, where the subject of the claim was either a website, mobile app or video content:
- 2018: 2,314
- 2019: 2,890
- 2020: 3.503
- 2021: 4,055
Q: Is This Applicable to ANY Brand in ANY Industry?
A: Going straight to the source … ADA.gov: “The Americans with Disabilities Act applies to state and local governments (Title II) and businesses that are open to the public (Title III).” Companies are taking to themselves to interpret this information in a myriad of ways. “The Department has consistently taken the position that the ADA’s requirements apply to all the services, programs, or activities of state and local governments, including those offered on the web.”
"Web accessibility is applicable to any business, government agency, or non-profit that interacts with people, provides information, sells goods and or services via the internet,” said John Griffin, publisher, Accessibility.com. “The internet is the touchpoint of the global digital ecosystem that is changing the world. Fully accessible websites are standard to all enterprises."
Moving to businesses that are open to the public is where the big debate begins. “A website with inaccessible features can limit the ability of people with disabilities to access a public accommodation’s goods, services, and privileges available through that website.”
“For these reasons, the Department has consistently taken the position that the ADA’s requirements apply to all the goods, services, privileges, or activities offered by public accommodations, including those offered on the web.” Some of the largest verticals to see legal action are retail, hospitality, travel, universities, and many more.
This is a great resource regarding overlays that was sourced by some of the top names in accessibility. Lots of great quotes at the bottom.
Q: What's the Proper Way to Comply?
A: The proper way to comply is to work with a reputable team that truly understands accessibility with websites. A great example would be a company like “Deque” based in Herndon, Va. Their direction can be a huge saver of cash, reputation and time.
Accessibility is also not just from a snapshot of time. It is ever changing and evolving with new rules coming any day now with updated WCAG recommendations. Many companies are beginning to establish specific company roles focused on leading the accessibility efforts. Some cases are even seeing it as a part of the settlement to establish a C-Suite level accessibility role.
"Today, companies need to be very cautious about any accessibility solution that claims it will fix all your problems for very little money,” says Glenda Sims of Deque Systems, a technology provider of end to end, integrated Web compliance solutions. “If it sounds too good to be true, it probably is. When I look at the state of digital accessibility today, it is clear that, on average nearly 60% of all accessibility issues (by volume) can be identified with automation. So, there is no way, today, that automation alone can make a web site or native app fully accessible."
Q: How Do You Make Media Accessible?
A: This one is tricky and just as much work if not more. Media is much more complex. All types of media have to be addressed including images, videos and virtual tours.
Images: Images must have alt tag meta data that includes descriptions that convey the intended context of the image. This could go many different directions depending on the audience intent for the image. Below is some great info on the topic from The Microsoft Ability Initiative:
For example, if a photo of a person appeared in a news story, people might want a description that includes details about the setting of the image to give a sense of place. But if a photo of a person appeared on a social media or dating website, people might want increased details about that person’s appearance, including some details that may be subjective and/or sensitive, such as race, perceived gender, and attractiveness.
Videos: Making videos accessible involves a few different elements depending on what is represented in a video. If a video is straightforward with just scenes that cut to other scenes with no speaking, there would be less to do. In this case there would be no closed captions because no one is saying anything. There would need to be an audio description track that explained every scene for blind or low vision viewers. This is where complexity starts as you would need a separate player to carry these non-traditional media items. You would also need someone who is able to write for disability which is a specialty form of writing.
A video with people speaking is all of the above but you are now adding in closed captions, transcripts and complex audio descriptions that could include a special version of the video that pauses every time a new scene is introduced. Videos are a very heavy lift and can get expensive for lengthy productions.
Virtual Tours: This is another highly complicated piece of media because the experience is user driven, and each user viewing the media may have interest in different areas of the virtual tour. The user driven aspect throws a curve ball at web design as there are many elements that need to “ride together” on the page to get you ADA compliant but also not make a mess of your webpage. The same elements from the video implementation above are needed but used in a different way depending on how the user interacts with the virtual tour.
We solved that with 360 AG™ aka The 360 Accessibility Generator. Barnes Creative Studios is an official partner with Matterport providing accessibility for the highly popular Matterport virtual tours. Matterport is the largest provider of virtual tours with their proprietary virtual tour software. The 360 AG solution rolls all of the necessary elements inside one clean player that is easily added to your webpage with an embed code just like any modern media. There is a lot of work going on behind the scenes to interact with screen readers and provide accessibility for users that need it.
Several years ago I had a large client demanding accessibility for their Matterport virtual tours, and there was no solution that existed. I kept searching and searching and could find nothing. There was a good reason for that as it was a tall task. It became my passion to solve this problem, and we spent a lot of time and money to come up with the solution which is now patent pending. It took many months to do it but we’re thrilled now to be partnered with Matterport helping their users add accessibility to their very popular and useful digital twins.
The biggest message to receive from all this information is that accessibility is going nowhere, and the time to adapt is now. By getting in front of this you can save a lot of money and do the right thing by being inclusive and opening your content to everyone.