ADA Compliance Lawsuits Against Websites & How To Avoid Them

Lower Your Litigation Risk: Make Your Website Accessible

Most of us have some familiarity with what accessibility is in the physical world: ramps, doors wide enough to fit wheelchairs, Braille on signage. But not everyone understands web and digital accessibility. Like equal access in the physical environment, everyone deserves full and equal access to the internet. Websites, social media, digital applications and documents, and online communication: it’s all integral to how we connect with information and with each other today. Nobody should be left out, and disabilities should not be the reason someone cannot get important data or services. In fact, most website and other web service and solution providers are obligated by law to make their web and digital or electronic content and functionality accessible to users with disabilities. In many countries, including the United States, compliance with accessibility law of this type is both required and enforced.

The Americans with Disabilities Act (ADA)

The Americans with Disabilities Act (ADA), signed into law in 1990, is a landmark civil rights law in the United States. The ADA prohibits discrimination against individuals with disabilities in all areas of public life, including employment, education, transportation, and public accommodations. When the ADA was first enacted, its accessibility requirements focused on physical barriers. Accessible bathrooms and lowered drinking fountains are two examples of how the ADA made physical spaces more inclusive for people with disabilities.

The internet, however, was still in its infancy in 1990, or perhaps more accurately, it was in a fetal state. The first publicly available website went live in 1991, and with that, the internet was born. Since then, the web has grown at an astonishing rate. Today, the internet is an essential part of daily life, providing access to information, multiple critical services, and employment. This digital landscape, however, has not always been accessible to people with disabilities. It is actually far less accessible than one might expect, although this is slowly changing.

With billions of websites now online, the ADA has likewise matured to cover communication, commerce, education, and access to services online. And there is also a growing focus on securing access for people with disabilities to all of these opportunities so freely available to everyone else.

Why Are Website Accessibility Lawsuits On The Rise?

The surge in e-commerce and the increasing importance of online services have led to a growing focus on website accessibility. In recent years, there has been a significant increase in lawsuits alleging that websites are not accessible to people with disabilities. These lawsuits can be costly and time-consuming for businesses to defend, even if they are ultimately judged in favor of the organization being sued, and not the plaintiff.

There are several reasons for this rise in litigation.

With a greater likelihood of not only getting their case heard, but potentially winning a sizable settlement, both individuals and legal teams are ready to take a shot.

Understanding Accessibility

Accessibility is the principle that information and communication technologies should be usable by everyone, regardless of their ability. When websites and digital content are accessible, people with disabilities can access information, use services, and participate in online activities on an equal basis. This is not just a matter of fairness and equality; for organizations of any size, it is also a smart business decision.

Accessible websites can reach a wider audience, which can lead to increased sales and brand loyalty. On the other hand, inaccessible websites may create a negative impression and alienate potential customers. Lawsuits can also damage an organization's reputation and cost a significant amount of money to defend or settle. Taking a proactive approach to correcting inaccessibility issues and implementing or improving website accessibility can help businesses avoid these risks. This approach creates a more inclusive online experience, and as a byproduct, it also makes for a better, more comfortable user experience for all site visitors.

Problems With Inaccessible Websites

When websites are not designed with accessibility in mind, they can create numerous significant obstacles for people with disabilities. Here are some examples:

This is not an exhaustive list, but it gives a sense of the challenges that people with disabilities can face when using inaccessible websites. By addressing these barriers and following accessibility best practices, businesses can create websites that are inclusive and welcoming for everyone, building in equal access for all users and avoiding the risk of legal action due to website inaccessibility.

WCAG: The International Benchmark for Web Accessibility

The Web Content Accessibility Guidelines (WCAG) are a set of internationally recognized standards for website accessibility. These standards are developed and maintained by the World Wide Web Consortium (W3C), a leading international community that develops web standards. The WCAG is not a legal requirement itself, but it is used as a foundation for many accessibility laws around the world. Following WCAG guidelines can help businesses create websites that are usable by everyone, regardless of their ability.

The WCAG are built on four core principles, often referred to as POUR:

1. Perceivable
   Information, content, and user interface components must be presented in a way that can be perceived.
   
2. Operable
   User interface elements and navigation must be operable.
   
3. Understandable
   Information and user interface operation must be clearly understandable.
   
4. Robust
   Content and function must be reliable and predictable, remaining compatible with a wide range of technologies.

Here are some examples of how websites can put these POUR principles into action:

• Perceivable: Provide alternative text descriptions for images, use good color contrast, and offer captions or transcripts for videos.
  
• Operable: Verify keyboard navigation functionality, use clear, consistent layout design, and provide enough time for users to read and interact with content.
  
• Understandable: Use plain language, avoid complex sentence structures, and include clear instructions.
  
• Robust: Use standard HTML, CSS, and valid code, so assistive technologies can interpret the content.

Common Web Accessibility Issues Leading to Lawsuits

WCAG & ADA Compliance: Legal Concerns and Real-World Examples

The ADA applies to all public accommodations, including websites. While the ADA itself does not specify technical requirements, courts have increasingly relied on the WCAG as a benchmark for determining website accessibility.

Here are some examples of how inaccessible websites have resulted in lawsuits:

• In a well-known 2019 case, a blind customer, Guillermo Robles, sued Domino's Pizza because their website was not compatible with screen reader software, making it impossible for this customer to order food online. This case highlighted obstacles that prevent individuals from accessing essential services.
  
• In 2015, Harvard University faced legal action from a student with a disability because online audio and video course materials were not available in a format that the student could access: captions were either missing or inaccurate. In this case, where deaf students were excluded from accessing educational content, inaccessibility directly prevented students from receiving equal opportunities. A settlement was reached, mandating the implementation of accessibility features. And, the National Association of the Deaf publicly proclaimed that Harvard would be required to adjust policy guidelines, guaranteeing accessibility to the school’s web and online learning resources, specifically for students with deafness or hearing impairments.
  
• In another, similar instance of higher learning accessibility obstacles on educational institution websites, Jason Camacho, a blind Brooklyn resident, sued 50 colleges over barriers he said he experienced in attempting to access their websites. There were multiple settlements in the Camacho case. Nevertheless, a recent analysis of colleges and university website home pages found that 96% failed accessibility tests. These institutions are at high risk of an accessibility violation lawsuit, and would be wise to fix their sites.
  
• In yet another case, against the Winn-Dixie supermarket chain, there was quite a bit of judicial back and forth over what was required in terms of website accessibility, and whether the website’s inaccessibility was an unacceptable barrier for the plaintiff under the ADA, because the plaintiff was unable to order their prescriptions online for store pickup. In the case against Winn-Dixie Stores, the court referred to the WCAG in its judgment, emphasizing its role as a benchmark for accessible web design. This case helped set a precedent for future web accessibility lawsuits.
  
• Another supermarket chain case against Safeway resulted in a negotiated settlement agreement mandating the implementation of accessibility on the chain’s main grocery shopping website, to ensure accessibility and content compatibility for visitors with visual disabilities who use screen readers and other assistive devices.

In many court cases, judges have explicitly referenced the WCAG as a source of authority on web accessibility. This trend suggests that following WCAG guidelines is becoming increasingly important for legal compliance.

The Likelihood Of Lawsuits Due To Inaccessible Websites

Inaccessible websites can create significant barriers for people with disabilities. When a website is not accessible, it can prevent people with disabilities from accessing goods, services, or information. This can be a violation of the ADA's prohibition on discrimination based on disability, infringing on civil rights and leading to lawsuits.

These examples listed above underline the urgent necessity for organizations to comply with the ADA’s legal requirements and the WCAG’s accessibility guidelines to avoid litigation and provide equal access to all users.

Identifying & Fixing Accessibility Issues: Two How-To Guides

While there are many methods to test for and fix accessibility problems, here are two of the most common ways to conduct a web accessibility audit, broken down into actionable steps:

1. How To Run An Internal Self-Audit With Automated Tools
   Organizations with qualified employees on staff can conduct an initial website accessibility audit using a combination of in-house resources and automated testing tools. Here's a recommended process:
   
   • Gather Information
     • Identify all relevant websites and digital content to be reviewed.
     • List the target audience, including any user groups with disabilities.
       
   • Select & Run Automated Tools
     • Choose reputable automated accessibility testing tools.
     • Run automated accessibility testing tools to identify potential accessibility issues, including common problems such as missing alt text for images, insufficient color contrast, and inaccessible forms.
     • Generate reports that highlight potential violations and areas for improvement.
       
   • Review Findings
     • Have your team review the results of the automated tests.
     • Create a detailed document of all identified accessibility issues. Include descriptions, locations, and potential impacts of each issue.
       
   • Prioritize & Remediate
     • Prioritize issues based on severity and impact on user experience.
     • Plan a step-by-step approach to address each issue. Assign responsibilities to team members and set deadlines for fixes.
     • Make the necessary changes to the website and digital content. Check all fixes against ADA and WCAG standards.
       
   • Follow-Up
     • Re-Test: After implementing changes, run another round of automated and manual tests to confirm that issues have been resolved.
     • Continuous Monitoring: Set up regular accessibility checks and audits to maintain compliance and address any new issues that arise.
     • Team Training: Sign staff members up for outside training in accessibility requirements and best practices, or arrange for accessibility experts to deliver training in-house.

Problems & Limitations Of Self-Auditing

In-house teams may lack in-depth knowledge of accessibility best practices and the latest WCAG standards. It’s also probable that they do not have the level of expertise needed to fully understand and prioritize accessibility obstacles. And, the use of automated tools alone cannot identify all issues and often miss context-specific problems. This method can lead to incomplete solutions and missed compliance targets.

2. How To Conduct A Web Accessibility Audit With External Experts
   For a more comprehensive assessment and results, consider engaging an external web accessibility consulting service. Here's a recommended approach:
   
   • Research & Request Proposals
     • Research and shortlist qualified web accessibility consulting firms.
     • Request proposals that outline their methodology, experience, and team qualifications.
     • Choose a reputable web accessibility consulting firm with a strong track record in ADA compliance and WCAG standards.
       
   • Initial Consultation
     • Meet with the consultants to discuss your organization's needs, goals, and current state of web accessibility. Provide them with access to your website and digital content.
     • Work collaboratively to define the scope of the audit.
     • Provide them with information about your target audience and digital content.
       
   • Comprehensive Audit
     • The accessibility consultant will perform a thorough review using both manual and automated testing methods. This includes assessing all aspects of your site for compliance with ADA and WCAG guidelines.
     • They will identify and document all accessibility barriers.
       
   • Report & Remediation Plan
     • Expect a comprehensive report from the consultants. This report will outline all identified accessibility issues, their severity, and specific recommendations for remediation.
     • Work with the consultants to develop a detailed action plan. This plan will prioritize issues and outline clear steps for making your website accessible.
       
   • Implementation Support
     • The consulting service can provide ongoing support and guidance as you implement the recommended changes. This helps your team input fixes that are effective and compliant with accessibility standards.
       
   • Re-Testing & Verification
     • Document As You Go: Keep detailed records of all changes and updates made by your teams during the audit process. This documentation can be useful for future reference and compliance verification.
     • Second Round: After your changes are made, the consultants will re-test your website to verify that all issues have been resolved and that the site meets accessibility standards.
     • Watch The Clock: Remember, in most cases, this type of re-testing can only be done within a short time frame following the initial audit. This is because websites and other digital materials change so frequently.
       
   • Ongoing Support
     • Establish a partnership with the consulting firm for regular audits and updates, to maintain compliance and to address new challenges as they arise.
     • Request training for your teams, if available, to educate each of them on their most task-relevant best practices and prioritizations for accessibility.
     • Consider scheduling ongoing support from the accessibility consultant to build in long-term website accessibility compliance and continuity.

Benefits Of Engaging External Expertise

Accessibility consultants offer specialized knowledge and experience in identifying and fixing a wide range of accessibility obstacles. They can provide organizations with a deeper understanding of accessibility requirements, a much more accurate assessment of website accessibility, and efficient solutions to address compliance violations and accessibility barriers.

By following one or both of these step-by-step guides, organizations can begin clearly identifying and successfully rectifying their ADA violations, making their websites and digital content accessible to all users.

Effective Accessibility Testing: Tools & Methods

There are a variety of tools and methods available to help organizations assess and improve the accessibility of their websites and digital content. Here's a brief overview:

Automated Accessibility Checkers

These tools are often used by developers or accessibility specialists to evaluate web accessibility. They can also be used by less experienced testers, with varying degrees of accuracy in results and understanding.

• WAVE
  The WAVE tool by WebAIM is a widely used accessibility evaluation tool, offered as a free online tool and browser extension. It provides visual feedback about the accessibility of web content by injecting icons and indicators into your page.
  
• axe
  This is an open-source JavaScript library that can be integrated into development workflows to identify accessibility barriers during the coding process.
  
• Dev & QA Testing Tools
  For advanced users in development and QA seats, other analytical tools may be helpful. This article by Craig Morten as part of his mini-series on automating a11y testing is highly technical but will be easily absorbed by its target audience. We feel this second part of the mini-series may be most useful in context.
  
• Lighthouse
  Lighthouse is an open-source, automated tool for improving the quality of web pages. It has audits for performance, accessibility, progressive web apps, SEO, and more.

The Benefits Of Automated Accessibility Testing Tool Use By Experts

While no automated tool can fix every accessibility issue, some can address a significant portion of problems. Accessibility testing tools can also be valuable for experts by:

• Prioritizing Issues
  Automating the identification of low-hanging fruit allows experts to focus on more complex accessibility challenges.
  
• Maintaining Consistency
  Automated tools can help make sure accessibility testing is conducted consistently across all digital content.
  
• Expanded Test Coverage
  Automated tools can identify an exponentially wider range of accessibility issues than manual testing alone.

Fixing Accessibility Obstacles: Can Automated Tools Do This?

The short answer is, yes, but only partly. No automated testing tool can find all obstacles, and no automated tool can fix them all effectively and accurately. However, some tools can automatically adjust and solve for a large quantity of accessibility blockers that commonly occur. These tools can also be used firstly as an initial entry option for accessibility, where smaller organizations or businesses can use them as an affordable solution when they can’t budget for experts. Secondly, they can be used as a way to cover more ground, because many organizations run more websites and digital materials than even a professional dedicated team can’t fully handle on an individual issue basis, certainly not around the clock. And thirdly, these tools can serve as a leverage point for experts who use their resulting scans and data to begin their rounds of accessibility evaluation and remediation.

Automated Tools For Fixing Accessibility Issues

While automated tools come in multiple forms, we’ve listed some popular accessibility plugins & widgets here. Some of the top choices in this category include UserWay, accessiBe, Equally AI, Equal Web, and Monsido. Of course, within this category, there are many more options available, and it’s best to choose your tool based on the options that fit your organization’s needs, as well as with reference to tools that come highly recommended.

In general, these types of tools are automated solutions that detect accessibility issues, and for certain types of issues, fix them automatically as well. 

Limitations Of Relying Solely On Automated Tools

Automated tools are invaluable in identifying many accessibility issues, but they have their limitations.

Automated tools might not have access all website pages or digital documents. They cannot fully evaluate content in design or planning stages, which experts can do, saving time and resources by incorporating accessibility from the outset. Complex websites or those using third-party technologies often require expert evaluation, as do sites with security clearance needs or staged content. A comprehensive approach to website accessibility testing should combine the efficiency of automated tools with the expertise of human specialists to thoroughly review, assess, and repair design and functionality issues that create unnecessary obstacles to access for users with disabilities.

Combining Automated & Manual Testing For Optimal Web Accessibility

A well-designed website accessibility testing and remediation plan should make good use of the strengths of both automated tools and manual testing by accessibility experts. Automated accessibility checkers can efficiently identify a wide range of common accessibility barriers. Accessibility specialists can then focus on complex issues and use their human judgment to evaluate the user experience for people with disabilities.

Let’s compare three different approaches to website accessibility testing:

Automated-Only Testing

Manual-Only Testing

Combined Approach

These tables highlight the advantages of a combined testing approach. While there may be some initial expense associated with expert consultation, this investment can yield significant benefits in the long run. Many accessibility consulting firms offer flexible payment plans and can work with organizations to develop a testing schedule that fits within budgetary constraints. For example, an organization might choose to conduct a comprehensive accessibility audit annually, supplemented by regular use of automated testing tools throughout the year.

Budget limitations should not prevent organizations from taking steps to improve website accessibility. By carefully considering their resources and exploring their options, organizations can find a cost-effective approach to accessibility testing and remediation. Investing in a robust accessibility testing and remediation plan is very much worthwhile: it builds in verified compliance, optimizes the user experience, and reduces the risk of legal action.

Engaging Users With Disabilities For Testing & Optimization

All organizations can and should take the following steps to involve users with disabilities in the accessibility testing and improvement process, including providing ways for end users with disabilities to alert administrators to issues.

Feedback Mechanisms

Organizations should provide clear and accessible mechanisms for users to report accessibility issues. On a website, this could include:

• A dedicated accessibility feedback form
• An accessibility support email address
• A direct phone number for reporting accessibility concerns and complaints

Of course, without a feedback response system, the mechanisms are useless. A solid system for accessibility response should:

• Note and document accessibility obstacles reported by users
• Review the feedback in a timely manner
• Implement necessary fixes to improve accessibility

User Testing By Users With Disabilities

This method provides clear advantages. Testing by people with disabilities reveals how users actually interact with the website, highlighting practical challenges. User feedback helps shape design decisions that are truly inclusive for everyone. And, demonstrating a commitment to user testing with disabilities looks good: it strengthens an organization's ADA compliance efforts.

Insights Provided

User testing performed by individuals with disabilities can provide valuable insights, including:

• Identifying practical obstacles in real-time usage
• Highlighting areas that need improvement from a user perspective
• Offering specific recommendations for accessibility enhancements
• Confirming that accessibility features work as intended across different assistive technologies

Organizations should request assistance internally from team members with disabilities, either as part of their usual duties or as an extra task, with fair compensation for their efforts. Or, they may choose to hire external consultants.

Why Hire External Accessibility Testers With Disabilities?

While in-house team members with disabilities can provide valuable insights on an organization’s website and online or digital documents and materials, it's wisest to also seek assistance from external accessibility testing experts.

• Clearly Defined Scope: External consultants bring a structured approach, defining clear testing goals and timelines, and outlining specific responsibilities that pertain only to this tester or group.
  
• Accessibility Expertise: Testers who come to the task with dedicated accessibility knowledge and experience are more likely to identify a wider range of accessibility barriers.
  
• Impartial Perspective: External testers provide an unbiased viewpoint, identifying issues that in-house teams might miss due to their familiarity with the material.

Engaging users with disabilities in accessibility testing helps organizations comply with ADA regulations. Involving users with disabilities in this kind of accessibility testing process is more than an ideal-situation best practice, it's a real-world use case check, and a vital step towards creating a truly inclusive online experience for everyone.

Building Accessibility Expertise Through Training

Organizations must train their on-staff web developers, designers, content creators, and digital marketers on accessibility standards and best practices. This training is essential to creating and maintaining an organizational standard of accessibility, so that new and updated content complies with current accessibility standards.

Training For Accessibility

There are several compelling reasons to prioritize accessibility training:

• Ethical Responsibility
  Providing full, fair, and equal access to web and digital content and functionality for all users.
  
• Legal Compliance
  Helping organizations avoid lawsuits under the ADA and other relevant accessibility laws around the world.
  
• Business Advantages
  Expanding client base: accessible websites attract a wider audience and improve user experience for all visitors. They can also boost brand reputation.
  
• Thinking Ahead
  Proactive accessibility measures are far more cost-effective than retrofitting inaccessible content after the fact. Lawsuits that require significant website overhauls to meet accessibility standards can be an enormous drain on resources, forcing teams to spend time fixing past mistakes instead of focusing on new projects.

These benefits don’t only apply to organizations providing training to their in-house teams: the advantages are equally applicable to independent web professionals such as freelancers and contractors. Accessibility training can make their services more attractive to potential clients, especially larger organizations with stricter accessibility requirements. For small businesses, hiring an accessibility-aware freelancer can be a major advantage, helping them avoid legal issues and reach a broader audience.

Training Resources

Here are some current resources and programs for staying up-to-date on accessibility guidelines:

• Web Accessibility Initiative (WAI) Free Online Course
  A free online introduction to foundations of digital accessibility. Course offered via edX by the Web Accessibility Initiative (WAI) of the W3C (World Wide Web Consortium) and the United Nations UNESCO Institute for Information Technologies in Education (IITE).
  
• WAI Resources for Trainers and Educators
  For educators and trainers seeking to build a course or learn more about how to teach accessibility., this page includes an introduction to web accessibility page, and curricula with clearly outlined learning goals.
  
• IAAP (International Association of Accessibility Professionals)
  This organization offers self-paced virtual training courses and trainings through EduNext, free to members, paid for non-members. These include the Princeton CPACC prep course and sample exam, the Accessibility Standards for Public Spaces Design Course, and the Document Accessibility Overview course.
  
  They also have a searchable educational resource database with vetted professionals and materials.

Management Accessibility Training Considerations

Management should undergo training to understand web and digital accessibility and how to implement it within their organizations. Leaders can benefit from training that helps them understand the importance of accessibility and how to support their teams in creating accessible content. Managers can find training programs through organizations such as those listed above and others.

Several large companies have made accessibility training a priority for their teams.  While specific training materials and courses may not be publicly available, these examples demonstrate the growing emphasis on accessibility leadership:

Microsoft has a long history of commitment to accessibility and offers a variety of training resources for its employees, some of which are shared publicly and can be used outside the company.

Accessibility is a core value at Adobe, and the company offers training programs to help all employees understand and implement accessibility best practices. Some materials are available to the public.

IBM is a leader in accessibility innovation and provides extensive training for its workforce. IBM has resources available both internally and to the outside world.

By investing in training, organizations can build a culture of accessibility that benefits everyone. Smart businesses know that and have it in place, and it’s in the best interest of smaller or younger organizations to follow their lead.

Maintaining Accessibility, Mitigating Risk

Continuous Monitoring And Updates

Websites and digital content are constantly evolving, and so are accessibility standards and best practices.  To maintain compliance with the ADA and WCAG, organizations should continuously monitor websites and digital content for accessibility issues using a combination of automated tools and scheduled manual testing processes, and regularly update accessibility testing tools so they identify the latest accessibility barriers. These measures help organizations proactively identify and address accessibility issues, preventing potential legal problems and creating a more positive user experience for everyone.

Seeking Legal Counsel

When should an organization set up a legal consultation with an attorney specializing in accessibility law?

1. Proactive Review: Even if an organization or business is not facing a current lawsuit, a consultation can help identify potential accessibility risks, review their current compliance measures, and develop a plan for necessary adjustments towards achieving compliance, before any legal issues arise. This proactive approach helps avoid costly lawsuits.
   
2. Responding to Complaints: If an organization receives an accessibility complaint, a lawyer can advise on appropriate next steps and potential legal implications. This helps address the complaint efficiently, reducing the risk of it escalating into a lawsuit. Legal experts can guide the organization in rectifying the issues promptly and effectively.
   
3. Facing Active Litigation: In the event of a lawsuit, legal counsel is urgently needed.
   Immediate legal advice can help protect the organization’s interests, develop a robust defense, and identify steps to improve accessibility. Early intervention from a lawyer can potentially help minimize the impact of a lawsuit and explore options for improving accessibility to strengthen the organization's position. Taking swift action can positively influence the outcome of the lawsuit.

Maintaining Documentation

Maintaining clear and detailed records of accessibility efforts is crucial.  This documentation can serve as evidence of an organization's good faith efforts to comply with the ADA and WCAG in the event of a legal challenge.  Records should include:

• Accessibility policies and procedures
• Accessibility testing results
• Remediation plans
• Training records

By keeping comprehensive documentation, organizations can demonstrate their commitment to accessibility and potentially strengthen their legal position.

Getting To Accessibility, Because Access Matters

In today's digital world, websites and digital content serve as gateways to information, services, and opportunities.  For people with disabilities, inaccessible websites can create significant barriers, hindering their ability to participate fully in society. Creating accessible and inclusive digital environments supports the autonomy and inclusion of individuals with disabilities.

Considering the needs of all users benefits everyone. Providing accessible digital experiences fulfills a moral obligation to offer equal access to all users. And, it helps organizations avoid legal issues under accessibility laws.  The benefits extend far beyond legal compliance and financial risk reduction. By creating inclusive digital spaces, organizations tap into a wider audience, strengthen their reputation, and contribute to a more equitable and just society. By addressing accessibility, by making digital content accessible today, businesses and all types of organizations can contribute to laying the foundation for a better world tomorrow.

FAQs