The Americans with Disabilities Act (ADA) has been law for three decades (it turned 30 in 2020), but it’s fair to say that the world has changed considerably since it was first enacted in 1990.
Originally, the ADA was created primarily to guarantee that businesses included wheelchair ramps or braille signs in their physical structures, ensuring accessibility for people with disabilities.
However, as we move into a digital age, the ADA is increasingly being applied to a business’s ‘digital structures’ as well.
This means that websites are required to comply with the ADA by being accessible to people with disabilities—and litigation is on the rise for those who don’t.
A Spotlight on Website Accessibility
Take popular pizza chain, Domino’s Pizza, which was sued in 2016 by Guillermo Robles. In the suit, Robles claimed that, as a blind man, he was unable to order pizza on the company’s website and mobile app. Of course, when the ADA was enacted in 1990, the scope of the act did not take into account a future where this would be necessary. So, how are these lawsuits possible?
Title III of the ADA, where most recent lawsuits referring to non-compliance by websites lie, applies to any private company that offers public accommodations and services—in other words, if you are selling a product, service, or experience to the public, Title III applies to your business.
While the ADA never explicitly mentions the Internet, multiple courts have applied this to the accessibility of a business’s website, which is precisely what Robles argued before the federal District Court of California: he used screen reading software to navigate the web and both Domino’s website and mobile application were incompatible with it. The plaintiff further argued that the site had exclusive online-only promotions that were inaccessible to the vision-impaired.
Ultimately, the case made its way to the Ninth Circuit Court, which ruled in favor of Robles, releasing the following statement: “The alleged inaccessibility of Domino’s website and app impedes access to the goods and services of its physical pizza franchises—which are places of public accommodation.”
A more recent high-profile case was filed against Beyoncé Knowles’ company, Parkwood Entertainment, in January 2019 through a class-action lawsuit claiming that the company’s website, Beyonce.com, did not provide accommodation for people with significant vision impairments, leaving an estimated two million blind people and others with vision impairments unable to access the portal.
The suit was filed by Mary Conner, a blind woman from New York, and claimed noncompliance with multiple WCAG (Web Content Accessibility Guidelines), including a lack of accessible drop-down menus, no alt-text on images, and the inability to use a keyboard instead of a mouse.
Ms. Knowles and Dominos are high-profile cases, but they are far from alone. The Usablenet 2019 ADA Web Accessibility and App Lawsuit Report reveals that over two thousand (2,235) ADA website lawsuits were filed against companies in 2019. Retail was the most targeted industry at 60% of all cases and 21% of companies were sued more than once.
Covid-19 and the Uptick in Litigation
Most businesses and brands today understand the importance of ensuring that their websites are accessible. Consumers are increasingly doing their product research and shopping online.
In 2020, when work, education, and shopping suddenly moved online, it became glaringly apparent that, even though many businesses know they need accessible websites, the reality is that compliance is much more difficult to achieve than they imagined.
Many businesses simply were not ready to meet the compliance demands for accessible websites and software. ADA accessibility lawsuits and compliance letters soared.
Beyond Legal Requirements
According to the World Health Organization (WHO), over one billion people—or 15% of the world’s population—live with disabilities. And according to a CDC report, one in four Americans (or 61 million people) have some form of disability.
If we consider the spending power of more than 60 million Americans, and that, according to the Click-Away Pound 2019 report, 69% of customers will instantly leave a website if it does not meet their accessibility needs, it’s clear that complying with the ADA is not just the right thing to do, but offers measurable commercial benefits as well, not to mention the reputational damage to brands found to be excluding a quarter of the US’s population.
Remember, accessibility is a human right, and the ADA is meant to protect disabled individuals as they go about their daily lives. As we’re increasingly seeing, courts are siding with individuals who are denied services due to their disabilities, making it a critical area for every business with a public website to address.
So, let’s take a look at what the ADA is, how it applies to website content, and how companies can comply with it.
The Gold Standard of Compliance to the ADA
Unfortunately, because the ADA does not explicitly mention the Internet or websites, “compliance” can be tricky to define. To address this issue, the World Wide Web Consortium (W3C), which is a global community of accessibility experts, has developed WCAG 2.1, or Web Content Accessibility Guidelines (2.1 being the most recent version of the guidelines).
WCAG 2.1 is not a law, but because there is currently no formal federal prescription on exactly what businesses need to do to ensure their websites are compliant with the ADA, best practice is to conform to it.
WCAG 2.1 AA, which is the second level of compliance featured in WCAG 2.1 (A, AA, and AAA), is seen as the gold standard, and most lawsuits now reference it.
WCAG 2.1’s guidelines list 50 things that businesses can do to improve accessibility to their websites and mobile apps and suggest enhancements that address the needs of people with a variety of disabilities, including hearing, vision, mobility, learning and cognition, and so on. They can all be found here. Complying with WCAG 2.1 AA will ensure your website is compliant with most laws around the world as well.
ADA Website Compliance Best Practices
In order to comply with both the ADA and WCAG 2.1, step one is for businesses to make their websites more accessible and free from barriers, but there are a number of other best practices that can be followed as well. To improve ADA compliance, your organization can:
- Contract a reputable independent third party to audit your website at regular intervals.
- Ensure people with disabilities test your website and provide feedback on any issues they encounter.
- Invite feedback from any customers who use your website and have disabilities.
- Use automated scans and constantly monitor your website for accessibility issues.
- Conduct regular web accessibility training for all individuals who contribute to your digital operations.
- Create and publish a digital accessibility policy. Ensure you have a statement of conformance (otherwise known as a certification of accessibility) published on your website. This is often the first thing that a plaintiff’s lawyers look for and will use as proof that there are accessibility issues on a website.
The Importance of Automated Website Archiving
From a legal perspective, businesses that receive a demand letter and end up settling still have to make their websites accessible. Similarly, being sued once does not mean you can’t be sued again—this happens frequently in the US. Finally, the ADA is a strict liability law, which means there are no excuses for non-compliance. You can’t say that you’re busy fixing it, or that your web developer is on vacation and something went wrong while they were away.
This is where the importance of archiving a website in replayable format to prove compliance with the ADA becomes so important. Without an automated website archiving solution in place, a business cannot prove that its website was ADA compliant on a particular date. Without complete and defensible website archives, the matter can then turn into a fierce legal battle. With a detailed archive, however, it’s easy to show exactly what the functionality of a website was, even if changes have since been made to that website.
An automated website archiving solution like Pagefreezer’s allows organizations to keep a complete record of website content. We use technology, similar to that used by search engines like Google, to crawl a site at regular intervals and capture all changes and deletions. Through our user-friendly dashboard, customers can then view chronological versions of any given page and instantly see what’s changed—deletions are highlighted in red and additions are shown in green.
To learn more, visit our Website Archiving Product Page, or download our case study, Large-Scale Website Archiving for a Global Technology Company, to see how Pagefreezer is archiving 150,000 webpages to meet the needs of a leading global tech company’s legal and marketing teams.
