Are ADA Overlays a Liability? Here’s What Accessibility Experts Had to Say

Are ADA Overlays a Liability? Here’s What Accessibility Experts Had to Say

Lawsuits for websites that are not ADA complaint continue to threaten many internet businesses.

These companies often turn to accessibility tools to quickly make their sites ADA compliant, thinking they’ll be protected from a lawsuit.

Accessibility tools (screen overlays and widgets,) such as UserWay, AccessiBe, and AudioEye, work by adapting website content to users’ needs.

Yet, the levels of accessibility that these tools offer varies from overlay to overlay. To cut through the noise surrounding website accessibility tools, we reached out to several industry experts.

The ADA Experts

Kim Testa: The Executive Vice President of the Bureau of Internet Accessibility, industry leaders in eliminating the accessibility digital divide since 2001.

Eli Freedman: The Senior Partnership Success Manager of accessiBe, a two-part web interface and ai accessibility tool hailed as “World-Leading Web Accessibility Technology.”

Richard Hunt: Partner, Hunt Huey PLLC. Hunt Huey PLLC has a national disability rights practice that includes defending real estate developers, retailers, restaurants, shopping centers, banks, apartment owners and managers, hotels, single-family developers, homeowners associations and other enterprises in ADA and FHA litigation.

With their professional insight, we find answers to some of the most pressing questions surrounding the use of website overlays to achieve ADA compliance online.

  1. Are screen overlay products effective for making websites appear to be ADA compliant?
  2. If you install a screen overlay product, will you be less likely or more likely to become the victim of an ADA non-compliance lawsuit?
  3. When using a screen overlay product, can site visitors use their own assistive technology?

Are screen overlay products effective for making websites appear to be ADA compliant?

Screen overlay products improve website accessibility by adapting the existing assets of a website to best fit the needs of a disabled user.

These changes are not automatic and must be triggered by the user before making any visible adjustments to a site. We asked Kim, Eli, and Richard their perceptions of the effectiveness of these accessibility tools.

Kim Testa|The Bureau of Internet Accessibility

In the world of digital inclusiveness and accessibility, overlay products do nothing to ensure the original website code is compliant to WCAG 2.1 A/AA.  

They work by “recreating” the web pages with “their” code. A script is then inserted into the website’s original code, which in turn hijacks the user’s screen reader and forces them to learn a new technology. In some instances the overlay solutions make the user identify themselves as someone living with a disability. 

Keep in mind that 99% of people that need assistive technology, have their own and do not need, nor want to be forced to use someone else’s. While overlays may sound like an easy, quick-fix – they do absolutely nothing to remediate the accessibility issues of a website, web-based applications, or native mobile apps.

Eli Freedman | accessiBe

“There has been a lot of buzz in the marketplace discussing why web accessibility overlays are not compliant. We can say for certain that overlay companies pose their solutions as being compliant, when in fact they are not.

Research shows overlays only handle up to 25% of the WCAG requirements leaving the remaining 75% inaccessible and vulnerable to lawsuits. Why? Those overlays only handle the more simple requirements which are the CSS adjustments of a website. For instance, color contrast ratios, stop animations, larger cursors, font colors and sizing, and more.

Where accessiBe differs from other layover tools is that it handles both the foreground CSS adjustments and the 75% ‘heavy background lifting’ WCAG 2.1 AA requirements like Aria attributes, assistive technology compatibility, alt tags for images, contextual understanding Ai that assigns all the correct elemental structures like pop-ups, forms, icons, buttons, and website behaviors.”

Richard Hunt | Hunt Huey PLLC

““ADA compliant” isn’t really a meaningful question because there is no objective regulatory or judicial standard for business website ADA compliance (Government websites covered by the Rehabilitation Act have a standard almost identical to WCAG 2.0 AA). In fact, there isn’t even agreement on why a website has to be accessible under the ADA, and until you know why the website needs to be accessible it is impossible to say whether it meets that need.

We can say that in the broadest terms a website does what the ADA requires if a disabled individual has meaningful access to all the goods and services it offers. That is a subjective standard because it depends on the particular user and their assistive technology. Government agencies, businesses, and lawyers hate subjective standards, so most are using WCAG 2.1 or 2.0 AA as a kind of substitute measure of accessibility. Those standards involve compromises (that’s why there is an AAA standard) which means that even a website that conforms to WCAG 2.1 AA may not be accessible to all users and all assistive technologies.

The courts have not yet resolved whether the compromise represented by WCAG 2.1 AA is good enough to satisfy the ADA or is perhaps even better than the ADA requires. As for overlays, if you don’t know what the standard is you can hardly claim to meet that standard. A claim that an overlay makes a website ADA compliant will always be false, no matter how good the overlay is.”

Bonus Tip: To find out if your website is accessible, you can request our accessibility specialists to conduct a free site scan, by clicking here.

If you install a screen overlay product, will you be less likely or more likely to become the victim of an ADA non-compliance lawsuit?

For many companies, the purpose of installing an accessibility tool is to protect themselves from an ADA non-compliance lawsuit.

But how effective are accessibility screen overlays at protecting your business? Here’s what Kim, Eli, and Richard had to say.

Kim Testa|The Bureau of Internet Accessibility

Since overlays really don’t fix the issues, websites are wide open for a lawsuit. There are tools on the market that are used to identify websites that are using overlays and widgets…  

It’s simple for lawyers to get a list and target the companies using them. There is no magical solution to becoming digitally compliant, the only way to know if a website is compliant is to have a complete audit, both automated testing and manual testing (done by individuals living with disabilities) all done at the same time.

Eli Freedman | accessiBe

If a website owner has a layover tool that does not handle the ‘heavy background lifting’ as stated above, they are definitely at a greater risk of being served a demand letter or a lawsuit.

Reports have been received from people in the disabled community in tandem with law firms around the US are grouping together to find websites that are using layovers and targeting them with ADA lawsuits and demand letters as they too know those layovers are not making their websites accessible.

Richard Hunt | Hunt Huey PLLC

“Plaintiff law firms use software scanning tools to look for non-conformance with WCAG 2.1 or 2.0 at success level AA. A product can only reduce the likelihood of a lawsuit if it makes the website look like it is in conformance when scanned by the most commonly used software tools. 

As I understand it software scanning tools will not ordinarily trigger the accessibility features of an overlay that requires a user choice. Thus, if the website relies on the overlay to correct underlying non-conformities based on a user choice the overlay will not reduce the risk of a lawsuit. 

It is also important to remember that software scanning tools not only miss errors, they also report false positives. For example, because a scanning tool can’t tell if an image is purely decorative it will mark a decorative image without alt text as a nonconformity even though such images are not required to have alt text under WCAG 2.1 AA. 

To reduce the risk of litigation any solution must make the website appear perfect or almost so to the most commonly used scanning tools, whether or not that really makes the website easier to use for those with disabilities. As for plaintiffs targeting websites that use layovers, it would not be surprising if it were perceived by the plaintiff’s bar as a profitable enterprise.”

When using a screen overlay product, can site visitors use their own assistive technology?

Many disabled internet users have been dealing with accessible websites for a long time. Since most sites aren’t aware of their needs, they’ve had to rely on their own assistive technology to navigate the internet.

But if a disabled user tries to use their own tools on a site with an accessibility overlay, can both systems communicate with each other?

Kim Testa| The Bureau of Internet Accessibility

Yes, but as [I] stated earlier, a user may come to the website with their own assistive technology but, upon entering the site, the script will take over and force the visitor to use the overlay technology, making the user abandon their own, known assistive technology.  

Many times when this happens the user will leave the site and never return. Companies are looking to acquire new visitors not frustrate them to the point that they leave. 

Eli Freedman | accessiBe

In most cases, yes they can, however, that does not mean that it will be completely compatible with all assistive technologies like screen readers or keyboard navigation only.

In addition, there are certain layover tools that have screen readers embedded within their ‘solutions’ which is purely a marketing gimmick. This is actually counterproductive since those with disabilities have their own assistive technologies and the embedded screen reader’s conflict with their own technologies.

Richard Hunt | Hunt Huey PLLC

“Whether a particular overlay is compatible with any particular assistive technology is not within my technical expertise. What I can say is that in general, the ADA requires that any facility be accessible to disabled individuals as they come to it; that is, with whatever technology they are accustomed to using. You can’t tell a wheelchair user, for example, that they need to switch to a mobility scooter to enter your store. 

A similar principle exists in the Web Content Accessibility Guidelines; that is, they are intended to create accessibility solutions that do not depend on the user’s choice of assistive technology to the extent that is possible. An overlay that is incompatible with the most commonly used assistive technologies, and in particular with the most popular screen readers, won’t be regarded as improving the accessibility of a website for purposes of the ADA. 

There may be some assistive technologies so old or so rare that they do not have to be accommodated, but to satisfy the ADA an overlay must work seamlessly with the most commonly used assistive technologies.”

Now it’s Your Turn

At this point, you might be thinking, “Do I need an accessibility screen overlay for my website?” 

As you just learned from experts, while you can use a screen overlay to make your website appear more accessible, it’s only helpful to a certain extent.

Keep in mind that whether or not you use an accessibility overlay, there is still some manual remediation you’ll need to do within your website’s code.

Before installing or remediating anything on your own, you should know if your website is ADA compliant. Request a free ADA compliance scan today by clicking the link below.

After our ADA specialists scan your site you’ll have the expert information needed to proceed with improving your website’s accessibility.

As the environment around website accessibility continues to evolve, we want your business protected from an ADA lawsuit.