Understanding ADA Website Lawsuits
In 2018, at least 2,258 businesses in the US were sued because their website was not in compliance with the ADA. This is a 177% increase from the 814 lawsuits filed in 2017. Also in 2018, Emily Fuller, a blind woman from Broward County, Florida, filed 175 lawsuits against businesses whose websites were inaccessible to the blind.
This is surprising – shocking even – to most people. Unfortunately, many people are not aware of the needs of people living with disabilities. Nor do most people know that in the US, websites must be accessible to people with disabilities. When I introduce myself as a website accessibility consultant, people ask me many questions. Some of which you might be thinking as well. Here are some of the most common questions I get:
- What does it mean for a website to be compliant with the ADA?
- How can a website be accessible to people living with disabilities?
- How can a website be accessible to people living with disabilities?
- Why were these businesses sued?
- Can I get sued as well?
- How do I know if my website is accessible to people living with disability/ADA compliant?
If these questions interest you, read on! I will cover all of these topics and more.
This is the only article you will need to read to understand what is happening and what you can do to protect your company and be more friendly to people living with disabilities. I certainly encourage you to read other articles and resources, but this article will give you a solid foundation. It is a bit long, but definitely worth reading. It is best that you read everything in the order in which it is presented, but if you want to jump to specific sections, go right ahead.
Let’s get started!
First of all, let’s go over how people with different types of disabilities access websites.
Dispelling the Myth on Living with Disabilities
When creating websites accessible to people living with disabilities, it is important to have some knowledge on disabilities. Unfortunately, there are many stereotypes and a strong stigma associated with people living disabilities. A paragraph or two will not suffice to break these stereotypes and stigma. More than anything, it is important to keep in mind (and in the heart!) that people who live with disabilities are people.
Disabilities can be temporary or permanent. For example, a person who breaks an arm is temporarily disabled from using that arm until it heals; a deaf person is permanently unable to hear sound (hopefully the good folks at the Stanford Initiative to Cure Hearing Loss and their colleagues worldwide at other institutes will soon find a cure for deafness and other hearing disabilities).
When coding websites, we need to think of four main categories of disabilities. Below I mention the four categories and how people with these disabilities access websites.
A person with visual disabilities can use text-to-speech software, like this neat free software, that reads the content of the website out loud. Thus, if a person is unable to see the website, they can hear its content. For this, the website must be coded in a “clean” way that enables text-to-speech software to read the contents aloud. More on web accessibility compliance requirements on the next sections.
The deaf and hard of hearing might have difficulty accessing sound-based media – i.e. videos, slide presentations with voice overs, podcasts, etc. Subsequently, it is important to add caption or transcript of the spoken content.
There are many different types of motor disabilities; from a broken arm to tetraplegia. Therefore, there are different ways in which people interact with a device to access the internet. Below is a list of some of the most common types of devices used by people with motor disabilities:
- Oversized trackball mouse
- Adaptive keyboard
- Eye tracking
- Head wand
- Mouth stick
- Oversized trackball mouse
- Single-switch access
- Sip and puff switch
- Voice recognition software
As with motor disabilities, there are many different kinds of cognitive disabilities that can affect how an user interacts with a computer, phone, and tablet. Voice recognition and text-to-speech software, adaptive keyboard, and screen magnifier are some of the technology employed. A very important feature that many webmasters forget – or simply do not know – that can severely distress people with certain kinds of cognitive impairment is flashing colors. It is imperative that websites “do not contain anything that flashes more than three times in any one second period” (WCAG 2.1 Success Criterion 2.3.1 Level A).
With this basic understanding of the special needs of people living with disabilities, you can start to comprehend the importance of having a website that is accessible to all. Here’s a number that can put this into perspective, showing just how important this really is. The most recent U.S. Census reported that almost 20% of Americans live with a disability. That is right. Almost one-fifth of the US population lives with one or more disability.
Yes, web accessibility is very important. But more than “just” important. It is the law. A law that was passed almost three decades ago but just in recent years was applied to websites.
Americans with Disabilities Act (ADA)
The Americans with Disabilities Act (ADA), which became law in 1990, is a civil rights law that protects the rights of people living with disabilities by prohibiting discrimination “in all areas of public life, including jobs, schools, transportation, and all public and private places that are open to the general public” (ADA National Network).
Title III of the Act determines that places of public accommodation must be made accessible to people living with disabilities. This has been commonly used in architecture; buildings must have a wheelchair ramp, doors must have a minimum width 32”, so that wheelchairs can pass through, and so on.
Yet, it goes way beyond how buildings are constructed and its internal signage (i.e. elevators must have a braille alternative). Any way that commerce, employment, public life (including civic duties), schools, and transportation is made available – and are open to the general public – it must be accessible. This is where the internet comes in. The internet has become a staple of life. In the year 2000, Americans spent an average of 9.4 hours online a week. Now we spend an average of 24 hours a week on the internet – and this number is expected to keep rising.
The fact is that we live online. On the internet we have access to a plethora of information and opportunities (i.e. employment, classes, and shopping). Therefore, it has been argued – and many courts accepted (below I cover one very important legal case) – that the internet is considered a place of public accommodation. Subsequently, websites and digital files must be made accessible to people living with disabilities.
The ADA mandates that places of public access be made available, but it does not define how to make websites available. The guideline currently used is the Web Content Accessibility Guidelines, version 2.1 (WCAG 2.1).
The Web Content Accessibility Guidelines (WCAG)
The WCAG was created by the Web Accessibility Initiative (WAI) of the World Wide Web Consortium (W3C), which is the international consortium that creates standards for the internet (they do fascinating work!). The WCAG debuted on May 5th, 1999, with the 1.0 version. Almost ten years later, WAI released its second version, WCAG 2.0. Fast forward another ten years, on June 5th, 2018, the world was presented with WCAG 2.1, which had a few additions to its predecessors, but the changes were not significant enough to create a version 3.0.
The WCAG 2.1 contains 78 success criteria organized into four categories and three levels. Each category covers one main type of accessibility required. The levels determine how accessible a website is; a website that meets level A follows the minimum requirements of accessibility and a website that complies with level AAA reaches the ideal in web accessibility. Level AA is the most-commonly used guideline.
Below I mention the categories, quoting the WCAG 2.1, and give examples of success criteria of each category, explaining their importance. On explaining these criteria, I provide one scenario to exemplify their application. It is important to note that there can be several scenarios for each of the criteria.
“Information and user interface components must be presentable to users in ways they can perceive.”
Success Criterion 1.2.2 Captions (Prerecorded) (Level A)
Which states that prerecorded media that contains audio (for example, videos and slide presentations), must have captions. This is helpful for the deaf and hard of hearing to follow the video, and/or any other type of media, by reading the caption.
Success Criterion 1.4.3 Contrast (Minimum) – (Level AA)
States that there must be a minimum amount of color contrast between text color and background color; 4.5:1 for normal text and 3:1 for large text. This is meant to help people with visual impairment who might not be able to distinguish between similar colors. For example, orange text on a red banner might be difficult to read. However, white text on a red banner is much easier. When you want to ensure your content meets or exceeds this criterion, you can use this amazing free color contrast checker.
“User interface components and navigation must be operable.”
Success Criterion 2.1.1 Keyboard (Level A)
Determines that any and all features present on a page must be operable through a keyboard or keyboard interface (i.e. no mouse). This helps people with motor (for example, the late Stephen Hawking who revolutionized science from his wheelchair), visual, and cognitive disabilities.
Success Criterion 2.4.1 Bypass Blocks (Level A)
“A mechanism is available to bypass blocks of content that are repeated on multiple Web pages.” For a good example of this, think of the main menu of a website. Without this feature, a person who uses the keyboard to navigate a site will need to go through all the buttons of the main menu. Some websites have several buttons and sub-buttons, making this a tedious process. By installing a simple button that allows users to skip the main menu, down to the content of the page, webmasters give users the option of going through the menu buttons or bypassing them.
Understandable: “Make text content readable and understandable.”
Success Criterion 3.2.3 Consistent Navigation (level AA)
When elements of a page are consistently repeated throughout the website, they must be in the same order. Sticking with the example of the main menu, the order of the buttons must be the same across all pages that display the menu.
Success Criterion 3.3.2 Labels or Instructions (level A)
Instructs webmastere to create label or instructions when user input is required. A common application of this criterion is contact forms. When creating a contact form on a website, it is important to instruct people to fill out the form and to provide labels inside the field. For example, the name field should have the word “Name” inside.
Robust: “Maximize compatibility with current and future user agents, including assistive technologies.”
Success Criterion 4.1.1 Parsing – (level A)
When using markup languages (for example Hypertext Markup Language, or as it is commonly known, HTML), it necessary to open and close tags, nest all elements properly, and not duplicate attributes or IDs. An example of this is to open a markup tag, say a level one heading (<H1>) but not close the tag (</H1>). This can cause the entire page to be a level one heading, which means that the text on the entire page will be very large. Another consequence is that assistive technology software will not be able to determine which parts of the page are important, because the entire page is marked as important.
Success Criterion 4.1.2 Name, Role, Value – (Level A)
“Elements such as links, form elements, and components automatically generated, both the role and name can be programmatically determined and any change must include notification to users.” An example of this criterion is when the webmaster updates an image but does not update its text alternative; i.e. a news website that changes the image on the homepage on a daily basis but fails to change the description of said image.
So, web accessibility is the law and there is a clear set of internationally-supported guidelines to create and maintain websites to ensure their accessibility. However, there is some controversy as to whether the WCAG 2.1 should be the guideline to web accessibility, as you will see in the next section.
Robles v. Domino’s Pizza, LLC., a ADA Website Lawsuits Case Study
Now that I covered the four main types of disabilities, the ADA, and WCAG, you have enough technical knowledge to understand what is happening in the courts. Let’s look at recent ruling by the 9th Circuit Court of Appeals: Robles v. Domino’s Pizza, LLC. This case is a very good example because it shows the main arguments pro and against ADA website lawsuits.
First, some background story. Guillermo Robles, a blind man, sued Domino’s Pizza because their website and mobile app were not accessible to people with visual disabilities. His lawyers filed a suit against Domino’s in a federal district court in California. The district court agreed that Domino’s website and mobile app constituted places of public accommodation, as stated on the ADA. The court also accepted that the ADA mandates that places of public accommodation be made accessible to people living with disabilities – in this case, make the website and mobile app available to people with visual disabilities.
However, The district court dismissed the plaintiff’s complaint because the DOJ, had not determined how websites should be made available; which guidelines to use. Subsequently, to mandate that Domino’s use the WCAG would be a violation of Domino’s Fourteenth Amendment (the right to due process). As PerkinsCoie lawyers Amanda Beane and Brandon Johnson wrote, “The district court also invoked the doctrine of primary jurisdiction, dismissing the case while DOJ continued to consider whether implementing regulations should issue.”
Robles appealed to the 9th Circuit Court of Appeals, which overturned the district court’s decision. The 9th Circuit also accepted that the company’s website and app constituted places of public accommodation. However. It dismissed the Fourteenth Amendment claim and determined that “the WCAG standards might be an appropriate form of relief, but the court did not seek to impose liability on Domino’s under this standard” (Beane and Johnson). The 9th Circuit also dismissed the claim of primary jurisdiction on the grounds that waiting for the DOJ could delay the plaintiff’s relief. (For more information on the court’s ruling, I highly recommend that you read Beane and Johnson’s article. It is succinct and very interesting.)
In short, the 9th Circuit determined that:
- Companies can be held liable for having inaccessible websites;
- The Web Content Accessibility Guidelines can be used as the standard for web accessibility under the ADA mandate.
- The Court system has jurisdiction on the matter of web accessibility
This means that the courts have the power to make you liable if your website is not accessible as per the Web Content Accessibility Guidelines.
Today, October 07th, 2019, the Supreme Court declined to hear the case, thus granting Mr. Robles the legal victory.
What you can do about this…
By now you probably got the point that this is a very serious matter. Let’s look back at some numbers I cited throughout this article. Last year there were at least 2,258 ADA website compliance lawsuits against businesses with websites not accessible to people living with disabilities; 175 of these lawsuits coming from one person. Almost 20% of the US population lives with one or more disability and, thus, could sue businesses whose website is inaccessible.
When a business is served with a lawsuit, it has two options: to fight it or to settle. Most ADA website lawsuits end with a settlement. Even some lawyers are recommending clients to quickly settle, pay up, and move on. They say that it is cheaper than fighting. The few companies that choose to fight in court usually have deep pockets and are very well-known, so they also want to protect their reputation.
Still, for a business to quickly settle might leave them vulnerable to other people who could sue them for the fast settlement money.
Check if your website is compliant with the ADA. If it is not compliant, then hire a website accessibility consultant immediately. The fact is that if your website is not accessible, you are vulnerable to being sued and if you are sued, it is very unlikely that you will win in court – even if you have money to hire top ADA defense lawyers.
If it is too late for prevention and you have already been sued, then I recommend you to hire an ADA defense attorney to discuss your options. This article does not give any legal advice, it is simply informing what has been happening and your case might be different than others. Still, you will need to fix your website. It is usually part of the settlement agreement.
What does it takes (time and money) to make a website compliant?
This is one of the most frequent questions we get; “how much time and money will it take to fix my website?” The answer depends on a few variables:
Number of pages
A website with 5 pages will certainly be cheaper and less time-consuming than one with 500 pages
Number of templates versus unique pages
To save time and effort, webmasters commonly use templates – a layout that can be duplicated any number of times to create other pages. A simple way to understand this is by looking at the footer and header of most websites – they are consistent all across the website. Imagine having to create the header and footer from scratch every time a page is created. It would be a huge waste of time. These sections usually follow a template, so a change made on the header or footer would be instantly applied to all pages.
Similarly, entire pages can be made from a template – the layout will be the same, the webmaster simply needs to create the new content. A great example of this is WikiPedia. All their wiki pages look the same; all you need to do to create a page is to add new content and the page will be created looking just like all other pages. If the webmasters want to change the layout of the site, by changing the template, all pages that follow this template will be automatically updated.
The opposite of a site in which all pages follow a template is a website in which no page follows a template; all pages are unique. Any change on the website will need to be made on each individual page. A similar scenario, is a site with several templates. The more templates a site has, the more updates will be required to update the entire site.
Therefore, the more pages following templates and the less templates available, the less work will be involved in updating a site.
There are several programming languages a developer can use to create a website. The most basic way of creating a is site with the popular combination of Hypertext Markup Language (HTML) and Cascading Style Sheets (CSS). Developers can also use highly sophisticated languages, such as Ruby and Python. Currently, a popular choice is Hypertext Preprocessor (PHP).
The more sophisticated language, the more sophisticated the developer needs to be to work on the site. More sophisticated developers will require higher compensations.
Content Management System (CMS)
Many websites are powered by a Content Management System (CMS). A CMS is a software that helps the creation and management of content online. The most popular CMS is WordPress, which powers 26% of active website, and is based on the PHP scripting language. There are hundreds, if not thousands, of CMS software out there, written in several different programming languages.. Some are free, like WordPress.com, and some come at a very hefty price. As with the scripting language, if the website uses a sophisticated CMS, the price to make any alteration on it will likely be higher than if the site ran on simpler CMS software.
Number of WCAG 2.1 violations per page
As with the number of pages, a site that has about 5 violations per page will require less time and money than a site with 50 violations per page. To find out how many violations your website has, you need a web accessibility checker. Some companies provide a free sample of an automated audit and others will charge for it.
Okay, we are almost done. Hang tight. We still have a very important topic to cover.
What to know before hiring a website accessibility consultant
Every consultant is different. There are several web accessibility consultants out there, from freelancers to well-established organizations. Each has hers/his own way of working, process, pricing, time frame, etc. It can be a bit analyzing all the options, so below I tell you the most important things you need to know to determine who to hire.
Experience and knowledge
Website accessibility is a very serious matter. The company you hire needs to know what they are doing. In virtually every field, and here is no exception, there are very serious professionals who studied and practiced the trade for years – and there are people who are inexperienced or flat out scammers. This article is giving lots of information. When you talk to a consultant, ask them about what you learned here – the ADA, WCAG, what is happening in the courts, ask them how long they have been doing this type of work, and how they would handle your website, which is my next point.
What is their process?
While some freelancers might just “wing it,” serious firms have a well-thought out method to ensure that all violations are found, recorded, and then fixed. At Ally Right, our process is simple and effective – based on our experience, we create a Gantt chart, which contains all the tasks that need to be done, who is doing what, and the order in which tasks need to be completed. Our project manager lives by that chart and ensures that all tasks are completed on time. Before we start any project we take the time to outline everything and plan it properly so that we can finish it accordingly. This is not the only to do it, but in all the years we have working with websites, we’ve found it to be the most efficient for us.
Ask your consultants how they plan and conduct their work.This can also help you to ascertain how much experience they really have.
You will need an audit, to find out what is wrong in your website, and remediation, to fix the issues on the site. Some companies only do audit, other only do remediation, and a few do both. I might be biased in saying that it is best to go with a company that does both, but I see it the other way around, I decided that Ally Right would do both because it is the best way to go.
If you hire a consultant to find errors and then a group of developers and designers to fix them, there might be communication problems between the two of them. Also, if something goes wrong, is left undone, or not done properly, there might be the common finger pointing.
By hiring one company that can both audit your website and fix it, you will have better certainty that the job will get done; the chosen professionals will be responsible for making your website compliant. If the audit, the remediation, or both are not done properly, they will be responsible for redoing it until they get it right. Which bring us to the next point: warranty.
Do they offer any warranty?
A consultant might tell you that they are really good, but are they confident enough that they are willing to give you a warranty on their services? Very few companies do that. As a consumer, I find it important; it gives me peace of mind to know that if something is not done properly, the company will take care of it. It also means that the company will work really hard to get it right the first time around, so they do not need to redo it. At Ally Right, we provide clients with six months of warranty. If for whatever reason, we missed an item that needed to be remediated, we will do it for free – even if the client calls us six months later.
Prices can vary significantly from a two or three thousand for a single automated scanning of a website, to thirty thousand dollars for automated and manual audits. Each company has its own pricing structure.
You might come across people from all levels of knowledge and experience.
I sincerely have great respect and admiration for my colleagues in other organizations who also decided to dedicate their lives to making the web accessible to all. I do not see them as “competitors” as we all have the same goal of making the web accessible. Unfortunately, though, there are many people out there who have no idea what they are doing. Before hiring a consultant, ask them as many questions as you can – quiz them on the content you learned in this article. Make sure you are hiring the right people.
Conclusion/Too Long; Didn’t Read (TL;DR)
The American with Disabilities Act mandates that websites in the United States be made accessible to people living with disabilities. Though there is controversy as to which body should determine the guidelines of web accessibility, the most commonly used is the Web Content Accessibility Guidelines (WCAG), created and maintained by the World Wide Web Consortium (W3C).
Almost one fifth of the US population live with one or more disabilities. Any person with disability can sue a business that does not have an accessible website. Most businesses that were sued have settled out of court and some lawyers are recommending their clients to settle, instead of fighting in court. This became even more significant after the 9th District Court of Appeals overturned a federal district court in California, holding Domino’s Pizza liable because their website and mobile apps were inaccessible to Guillermo Robles, a blind man. The 9th District also determined that the WCAG can be used as guideline to make websites accessible.
The best option is prevention – fix your website before you get sued. If you have already been sued, contact an ADA defense lawyer to discuss your legal options and make your website compliant.
There are different factors that determine the cost and time needed to make a website compliant with the ADA. Before hiring a consultant, ask them questions to determine if they really understand web accessibility, how much it will cost, how long it would take them, and if they offer any type of warranty.