In October of 2019, the Supreme Court refused to listen to arguments in a lawsuit between Domino’s Pizza and a disability rights activist over the lack of an ADA compliant website, leading to widespread concerns that this precedent will result in a multitude of similar cases.
On February 6, 2019, CBS 17 released an article addressing the cases filed by Emily Fuller, a Florida resident. The woman, who refers to herself as an activist for disability rights, is intent on using the legal system to force businesses to make their websites more accessible to people with disabilities. She has succeeded in bringing lawsuits against large corporations like Home Depot, Helzberg Diamonds and Chick-Fil-A. She has now set her sights on small businesses and their websites.
These smaller targets have so far included the Sassy Pants activewear shop in Orlando, the Clearwater Shoe Store in Clearwater and Tampa Sportservice, Inc. in Tampa. These are small, locally owned businesses. Not mega corporations. The article states that these types of lawsuits have cost the businesses between $2,000 and $20,000. This represents an enormous financial loss for a small business.
Unfortunately, what Ms. Fuller is doing is legal. Although the ADA was created in 1990 and says nothing about websites being required to comply with the legislation, courts broadly interpret it to include online domains.
Fortunately, we can help you protect yourself against being sued for ADA non-compliance. You may also be pleased to know that in most cases, small businesses may only be sued for lawyer costs and the costs of becoming compliant with the ADA standards if compliance occurs within the requisite time period. This is normally between 60 and 90 days.
The Current Status of ADA Legal Problems
The rate of lawsuits regarding ADA compliance are on the rise. Research performed last year on cases filed regarding the ADA compliance of websites showed that they have risen by 177% during 2017 and 2018. Just last year, 2,200 companies had ADA lawsuits brought against them, and many were small companies. In 2019 alone, these lawsuits have jumped by 31% in the first quarter compared to 2018 and it doesn’t look like they’ll stop any time soon.
A letter sent to Congressman Ted Budd from the Department of Justice (DOJ) in September of 2018 provides advice for how to make a website ADA compliant. The letter came as a response from the DOJ to Congressman Budd’s inquiry into the court decision in the case of Robles vs. Domino’s Pizza. The District Court in the case heard accusations that the pizza company was violating Title III of the ADA because their website did not provide accessibility to those with visual impairments. Robles, the plaintiff, requested an injunction to make the company use a protocol called WCAG 2.0. The case was dismissed citing the DOJ’s lack of specific technical standards for making websites disability-friendly despite claiming this would occur in 2010. The court also stated that such an injunction would be a violation of Dominos’ due process rights, but conceded that the company was indeed violating Title III.
The letter between Congressman Budd and the DOJ seems to give an official suggestion in an unofficial way. Later, the District Court’s ruling was overruled by the Ninth Circuit Court after it heard the arguments in October of 2018 and upheld an injunction against Domino’s, forcing them to use the WCAG 2.0 protocol. However, as of June 2018, the World Wide Web Consortium (W3C) began using the updated version of the protocol, WCAG 2.1. This has lead to questions about which version businesses should use.
The legal problems surrounding Title III and its applicability to websites continue and it’s expected that Domino’s will take the issue to the Supreme Court sometime during 2019.
This makes it exceedingly difficult to ensure compliance and avoid lawsuits for all businesses, but small businesses often struggle the most. Although cases are ongoing, the courts and DOJ have shown that it’s not a valid defense against failing to make websites ADA compliant. The people and organizations filing these lawsuits haven’t lost any yet even against some of the country’s largest corporations. This paints a target on your business if your website doesn’t meet the Title III standards.
How to Make a Website ADA Compliant
Although the DOJ has recommended the use of WCAG 2.0, it’s over a decade out of date. Version 2.1 of the protocol contains the same features as 2.0 as well as 17 new ones that provide greater accessibility to the disabled. This means that if your website is currently using 2.1, it probably already meets the Title III standards and protects you against potential future lawsuits for using the outdated version.
If you’re trying to ensure that your website is ADA compliant, your main focus will be on text and non-text content. For instance, the visually impaired browse the web using text-to-speech programs to allow them to hear a website’s content. Making your website ADA compliant will make it easier for such programs to interpret your site’s text and for those with disabilities to engage with your business.
15 Pointers to Ensure ADA Compliance
- Use alternatives for non-text content. Text-to-speech software only works with text, so the visually impaired will be unable to use it with any non-text content. Pictures should be accompanied by Alt Attributes explaining the image, and audio or video should include text transcripts.
- Engage every visitor’s senses. Content that is intended to invoke the senses needs a text-based alternative. For instance, if you’re using a picture of a calm ocean to trigger a sense of tranquility for the visually non-impaired, you should try to invoke the same response through text for the visually impaired.
- Keep your content visually discernible. The colors you use should allow the background, foreground and text to stand out clearly from one another. Content for different purposes, like advertisements, subscription forms and your primary content, should also be easily distinguished.
- Make sure your site can be operated with a keyboard. Some people can’t use touch-pads or mice, so they have to use a keyboard to navigate websites. Ensure that visitors can use the enter, spacebar and other keys to get around your website and interact with links and features.
- Ensure ease of navigation. You must make it as simple as possible for impaired visitors to find content on your site and to find out which part of the site they’re currently on. Breadcrumb navigation links are an easy way to do this. Using dark patterns that conceal content may violate WCAG 2.1.
- Utilize the correct headings. Be sure that you use HTML tags to indicate a purpose or subject. This involves tags like H1, H2 and similar. Use these tags in a way that keeps things in an order that makes logical sense. For instance, if your primary content is “Buying a Used Car”, this is your H1 heading. “What to Look For in a Used Car” would be your H2 subheading. “Avoiding Common Pitfalls When Buying Used” would be your H3 subheading.
- Make your links descriptive. Your links’ anchor text must describe where they will take the visitor. This usually means refraining from the use of short keywords and opting for longer phrasing to appropriately inform visitors of the link destination. Many disabled visitors use dialog boxes to show all the links on a webpage. If all they notice are several links with generic “go here” text, they’ll be confused about how to proceed. Sometimes this is okay as long as it’s context-appropriate. For instance, a company profile containing a link to their website titled as “go here” clearly implies to the visitor that the link will take them to the business’ website. It’s also usually acceptable to use links with a call-to-action as the anchor text immediately proceeding information about it.
- Make your content easy to read. Technical or jargon-heavy content should be accompanied by a text summary so all visitors can understand it easily. Illustrations and charts should be used to accommodate visitors who struggle with reading comprehension. However, these too must include accompanying text for those with visual impairments.
- Include sign language accommodations. WCAG 2.1 suggests using sign language videos of your content for people who primarily speak with it since it’s easier for them to understand. Most websites don’t offer this due to the prohibitive cost and tedious production. Recommendations suggest using an interpreter fluent in sign language to make videos of primary content and for you to link or embed them. You can also choose to save this for interpreting words or phrasing that are difficult to understand or to highlight main points. It’s recommended that you at least provide your FAQ, help and contact info in this format. However, if you use text descriptions for non-text content, or if you use images, audio clips or simplified summaries, then providing a sign language interpretation is optional.
- Offer definitions and pronunciation guides. If you use words that are tedious to pronounce or whose definitions aren’t widely known, providing a glossary can help visitors better understand your content. You can include anchor links within articles and other content that take the user to the relevant word or phrase on the glossary page. This glossary should also include a phonetic spelling of the word or alternate text so visitors can hear the pronunciation.
- Be mindful of seizures. Flashing lights can cause seizures for some people. According to the WCAG 2.1, you should adhere to a “three flashes” policy. If you want something on your site to flash, it should only flash three times or have a significant pause between flashes.
- Offer control over timed content. If any of your content is timing-sensitive, make sure your visitors can reset, stop, pause, hide, reverse or fast-forward it when possible. These may include things like news tickers or sliding images.
- Give timeout warnings and enable session restarting. Visitors must be able to restart authenticated sessions and not lose their data. Be sure that authenticated sessions are accompanied by a timeout warning that lets visitors continue the session. This is often seen on banking websites as a security measure.
- Keep your operations predictable. Focusing or zooming should never alter the context, similar pages should be grouped together and have consistent labelling, and context changes should only be done at the will of the visitor.
- Maintain accessibility and keep up with changing standards. Your website shouldn’t interfere with the use of text-to-speech software. It should be properly formatted in HTML and Rich Markup. You should also ensure that your site remains up to date with any changes in HTML, Rich Markup and WCAG standards.
While there’s more to WCAG 2.1 protocols, these tips should enable most businesses to ensure compliance with Title III of the ADA. If you’re uncertain how to use these recommendations or if your website needs attention in other ways, it’s critical to seek expert help.
Signs Your Website Isn’t Compliant
Your site will not pass an ADA compliant website test if any of the following apply:
- The site is built on Adobe Flash (Google will also stop indexing Flash sites by 2020)
- You made the site with a builder tool from the 90’s and early 2000’s
- Your developer has no clue about alt attributes
- There are strobing banners and images all over the site
- There are sliding features with no controls
- Google considers your site mobile-unfriendly
- Portions of the site are sloppy, overlapping or out of context
This isn’t all you should go by, however. It’s very difficult to make a website comply with the numerous ADA standards. For this reason, be sure you protect yourself and your business from unnecessary lawsuits by downloading an ADA website compliance checklist today.
Enter your email and download your ADA Website Compliant Checklist Now.
Remember the best course of action is to make your website ADA compliant now, before you get hit with a demand letter. As we mentioned above, fines can run up to $50,000 and you will still have to make your site accessible.
Another point to remember is just because you get sued once, it doesn’t stop another party from suing you too. The Americans with Disabilities Act is a strict liability law which means THERE ARE NO EXCUSES to non-compliance.
There is not an official, legal or technical specification and because WCAG is an evolving standard; no one and no company, including us, can guarantee that your website is ADA compliant or that your business will not be sued. However, by following WCAG 2.1, Title III and other standards as best you are able to, you may likely avoid a lawsuit or be able to provide sufficient evidence to a court to avoid an injunction or other negative outcomes from a lawsuit.
We are SEO and digital marketers NOT lawyers and nothing in this blog post is intended to be legal advice. We recommend that you consult with an attorney familiar with ADA cases if you have any legal questions regarding your ADA website compliance.
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