Legal Compliance Archives- Page 5 of 7/Category

The True Cost of ADA Lawsuits: More Than Just Settlements
As a business owner with an online presence, you’re likely familiar with the importance of keeping up with legal requirements and ensuring your website meets certain standards. However, one area that might not be on your radar but deserves serious attention is web accessibility and the potential for ADA lawsuits.

Understanding Web Accessibility

Web accessibility refers to the practice of ensuring that websites and web applications are usable by everyone, including people with disabilities. This includes making content perceivable, operable, understandable, and robust for all users, regardless of their abilities or disabilities.

The Americans with Disabilities Act (ADA) was enacted in 1990 to prohibit discrimination against individuals with disabilities in all areas of public life, including jobs, schools, transportation, and public and private places that are open to the general public. Over the years, courts have extended ADA requirements to include websites and digital platforms, considering them as places of public accommodation.

The Rise of ADA Lawsuits

In recent years, there has been a significant increase in lawsuits against businesses alleging that their websites are not accessible to individuals with disabilities. These lawsuits typically cite violations of the ADA, claiming that inaccessible websites prevent full and equal access to goods and services.

The cost implications of these lawsuits are often underestimated by businesses. While the immediate financial impact of a settlement can be substantial, the true costs extend far beyond just the monetary figure agreed upon.

Direct Costs: Settlements and Legal Fees

Let’s start with the obvious: the direct costs. When a business is sued for ADA non-compliance, the most immediate expense is usually the settlement paid to the plaintiff. Settlement amounts can vary widely but often range from several thousand to tens of thousands of dollars. In addition to the settlement, businesses often incur significant legal fees defending against these lawsuits, which can escalate quickly depending on the complexity and duration of the case.

Indirect Costs: Reputational Damage and Lost Opportunities

Beyond the financial impact, ADA lawsuits can also have indirect costs that are harder to quantify but equally damaging. One such cost is reputational damage. In today’s digital age, news of an ADA lawsuit can spread quickly through social media and online platforms, potentially tarnishing a business’s reputation and undermining customer trust. For businesses that pride themselves on inclusivity and fairness, being embroiled in an accessibility lawsuit can contradict their values and negatively impact their brand perception.

Moreover, while dealing with a lawsuit, businesses may lose focus on core activities and strategic initiatives. The time and resources spent on legal proceedings could otherwise be invested in improving products and services, expanding market reach, or enhancing customer experiences.

Long-Term Costs: Compliance and Accessibility Upgrades

Perhaps the most overlooked aspect of ADA lawsuits is the long-term cost of achieving compliance and maintaining accessibility. Achieving ADA compliance involves not just fixing issues highlighted in the lawsuit but implementing a comprehensive accessibility strategy that ensures ongoing compliance with evolving standards.

This may include redesigning website elements, restructuring content, integrating assistive technologies, and training staff to create and maintain accessible digital content. These efforts require investments in time, technology, and expertise, all of which contribute to the total cost of addressing accessibility concerns raised by an ADA lawsuit.

The ROI of Web Accessibility

Despite the daunting costs associated with ADA lawsuits, there is a compelling case for investing in web accessibility beyond mere compliance. Research indicates that accessible websites tend to have better usability for all users, resulting in improved user experience, increased engagement, and potentially higher conversion rates. Moreover, catering to a broader audience can open up new market opportunities and enhance customer loyalty.

Taking Action: Protecting Your Business

As a website owner, protecting your business from ADA lawsuits begins with understanding and prioritizing web accessibility. Here are some proactive steps you can take:
1. Conduct an Accessibility Audit: Start by assessing your website’s current level of accessibility. Identify areas that need improvement and prioritize fixes based on their impact on usability and compliance.
2. Implement Accessibility Best Practices: Familiarize yourself with web accessibility guidelines such as the Web Content Accessibility Guidelines (WCAG). Implementing these best practices not only helps in compliance but also improves usability for all users.
3. Train Your Team: Educate your content creators, designers, and developers about accessibility standards and best practices. Encourage a culture of accessibility within your organization to ensure that accessibility considerations are integrated into all aspects of your digital presence.
4. Monitor and Maintain Accessibility: Accessibility is not a one-time fix but an ongoing commitment. Regularly monitor your website for accessibility issues and address them promptly. Keep abreast of changes in accessibility standards and technology to stay ahead of potential compliance issues.
5. Consult with Experts: If you’re unsure where to start or need guidance, consider consulting with accessibility experts or hiring professionals who specialize in web accessibility audits and remediation.
Conclusion

Navigating the complexities of ADA compliance and web accessibility can seem daunting, but you don’t have to go it alone. The financial and operational impacts of ADA lawsuits can be far-reaching, from legal fees to reputational damage, and the ongoing investment in accessibility upgrades. By proactively integrating web accessibility into your business strategy, you not only mitigate the risk of costly lawsuits but also enhance the overall user experience and showcase your commitment to inclusivity.
At 216digital, we’re here to help you navigate these challenges with ease. Schedule a complimentary ADA strategy briefing with us to gain valuable insights and practical solutions tailored to your needs. Let us help you turn accessibility into a strategic advantage, ensuring that your digital presence is inclusive, innovative, and poised for success.
Greg McNeil

July 17, 2024

Legal Compliance

Accessibility, ADA Compliance, ADA Lawsuit, ADA Lawsuits, ADA non-compliance, ADA Website Compliance
Is Your Website Exempt From the ADA?
As experts in digital accessibility, we get asked a lot of questions by potential clients. But one question stands out: Why should I make my website accessible if disabled customers can’t use my products or services? Do I have to follow the Americans with Disabilities Act (ADA)?

It can be hard to know exactly how the ADA applies to your website amidst all the legal jargon and technical standards. Plus, it’s undeniable that implementing and maintaining web accessibility takes time and resources. So, do you need to put effort into making your website accessible for all users?

It is time we tackled this question head-on and address the elephant in the room.

Understanding the ADA

The ADA is a civil rights law that protects the rights of people with disabilities in all areas of public life. This includes workplaces, schools, transportation, and places open to the public, whether they’re run by the government or by private businesses.

For example, the ADA requires employers to provide necessary adjustments, like ramps, to employees with disabilities. The goal is to make sure that people with disabilities have the same opportunities and rights as everyone else.

We often think of the ADA as only applying to physical places we can visit, like stores or schools. But what about places we visit online, like websites?

Do Websites Have to be Accessible?

Websites are not exempt from ADA compliance. Even though the ADA doesn’t directly mention digital accessibility or websites, the Department of Justice (DOJ) has clarified that websites do fall under the ADA’s purview, stating:

“…the Department has consistently taken the position that the ADA’s requirements apply to all the goods, services, privileges, or activities offered by public accommodations, including those offered on the web.”– US Department of Justice | Guidance on Web Accessibility and the ADA (2022)

In other words, if your website is not accessible to people with disabilities, it is not compliant with the ADA, as websites are considered public places. But what if a disabled person can’t use your product or service?

Are You Exempt From the ADA?

Some businesses believe they are exempt from ADA compliance if their products or services are not specifically tailored for people with disabilities. However, this is far from the truth.

The ADA applies to all businesses, regardless of their target audience. These misconceptions often stem from false assumptions and a lack of context. Let’s explore this issue in further detail.

Avoiding Assumptions About User Capabilities

Deaf individuals can be skilled musicians.

Wheelchair users can drive cars.

People with physical disabilities excel in sports.

Sometimes, our assumptions stem from picturing ourselves attempting tasks with specific disabilities. While you might initially struggle with a particular activity, those with disabilities possess unique skills and knowledge.

Moreover, disabilities vary widely in nature and severity, and what may work for one individual may not hold true for another. Take vision, for instance. While one person might be color blind, another might grapple with legal blindness.

Even within the same person, capabilities may fluctuate depending on the context. For example, a person with Parkinson’s Disease might be able to walk on certain days but not others.

Why Someone Might Access Your Content

But what if a disabled customer clearly can’t use my products or services? As with anything, context is everything. Let’s take a look at a few real-life examples.

Mirrors and the Visually Impaired

One of our clients was recently sued for ADA compliance by a visually impaired user. If you are wondering why a visually impaired user would be shopping for a mirror, you would not be alone. However, once more, context is everything.

A visually impaired person could have many reasons to look at a mirror company’s website. Some examples could include:
- Buying a gift for a family member or friend
- Decorations in their home or office
- Looking for someone else or work
- The severity of their disability isn’t that severe
- Interest in the product or service
However, while some users might wander onto your site with pure intentions, others might be seeking an easy target.

The Risks of ADA Non-Compliance

Over the past 20 years, several lawsuits and DOJ settlements have been filed due to accessibility barriers. Just in 2023, plaintiffs brought 4,605 ADA-related lawsuits to federal and state courts, 683 more than the previous year.

But that’s not all. In addition to these lawsuits, there were countless demand letters addressing digital accessibility concerns. In 2022 alone, an estimated 1,500 of these letters were sent out every week. These letters typically list the web accessibility issues plaintiffs encountered on the site. Plaintiffs can seek restitution in the form of tens of thousands of dollars.

The expenses of these lawsuits and settlements can be hefty, covering legal fees, settlements, and damages. By investing in digital accessibility now, your business can avoid getting tangled up in expensive legal disputes down the road.

A Step Towards ADA Compliance

If you’re a website owner, you might feel overwhelmed or even caught off guard. But here’s the deal:

Web and digital accessibility isn’t just about compliance; it’s about inclusivity. Anyone, at any time, may encounter barriers to accessing your website, and it’s your responsibility to accommodate diverse user needs. Whether selling products, offering services, or providing information, your website must be accessible to all users.

Here are some steps you can take to improve your digital accessibility:
1. Conduct an Audit: Scan your website to identify any barriers to accessibility.
2. Make a Plan: Address the barriers identified in the audit, prioritizing the most critical ones first.
3. Consult the Experts: Consider partnering with an accessibility expert to oversee ongoing web accessibility efforts and ensure compliance with ADA requirements.
4. Train and Education: Educate your staff on WCAG best practices and how to maintain accessibility standards moving forward.
5. Regular Monitoring: Continuously monitor your website for accessibility issues and address them promptly.
Why Federal Web Accessibility Lawsuits Are

Digital accessibility is not just a legal requirement but a fundamental aspect of providing equal online access to goods and services. To ensure your website complies with the ADA and serves a key demographic — it’s essential to find and fix accessibility barriers on your site. And that’s where 216digital can help.

Whether you want to protect against a frivolous ADA accessibility lawsuit or become WCAG 2.1 AA compliant, 216digital has you covered. Our team of accessibility experts can also develop strategies to integrate WCAG 2.1 compliance into your development roadmap on your terms.

Don’t wait for a lawsuit to push you into action. Schedule a complimentary ADA strategy briefing with 216digital to take the first step towards website accessibility.
Greg McNeil

June 20, 2024

Legal Compliance

ADA, ADA Compliance, ADA Web Accessibility, ADA Website Compliance, Website Accessibility
New ADA Title II Guidelines: What You Need to Know
For years, digital accessibility advocates and state and local governments have grappled with the lack of clear guidelines regarding web accessibility under the Americans with Disabilities Act (ADA). Thankfully, that’s about to change. On April 8, the U.S. Attorney General signed a new rule under ADA Title II, setting clear web accessibility standards for state and local governments. This means their services, programs, and activities must now be accessible to people with disabilities. In this post, we’ll walk you through these updates, explain their implications, and show you how to stay compliant.

What is ADA Title II?

The ADA is a landmark civil rights law passed in 1990. It prohibits discrimination against people with disabilities in all public areas. Title II specifically addresses the obligations of public entities, such as state and local governments, to provide equal access to their programs, services, and activities. This includes services, programs, and activities offered online and through mobile apps.

What Are the New Regulations Under Title II?

In a significant move towards inclusivity, the new regulations under ADA Title II require all U.S. state and local government websites and mobile apps to comply with the Web Content Accessibility Guidelines (WCAG) 2.1 AA. Created by the World Wide Web Consortium (W3C), these guidelines are the gold standard for making digital content accessible to individuals with disabilities.

Following these standards ensures everyone can access essential services like paying taxes, viewing public records, and participating in community events.

Who is Affected by This New Rule?

The new ADA Title II rule on accessibility casts a wide net, impacting various entities:
- State and Local Governments: All branches, departments, and agencies, such as city councils, health departments, police departments, and fire departments.
- Special Districts: Districts focused on specific public functions or services, like water distribution, public transportation, and park management.
- Contractors and Third Parties: Companies contracted by state or local governments to provide public services.
Content Created by Third-party Contractors and Software Vendors

To comply with the new rule, governments must ensure that all their websites and mobile apps are accessible, including any digital content from third-party vendors or agencies. The rule states that any online content a public entity shares with users must meet accessibility standards, regardless of whether it comes directly from a public entity or a third-party organization under contract.

For example, suppose a city hires a third-party app to handle parking payments. In that case, that app must meet the WCAG 2.1 AA accessibility guidelines.

When Will the New Rule Take Effect?

The final rule took effect in June 2024, 60 days after being published in the Federal Register. Public entities now have two to three years to ensure their websites and mobile apps meet WCAG 2.1 AA standards, depending on their size:
- Public entities with a population of 50,000 or more: Must comply within two years (by April 24, 2026).
- Public entities with a population of less than 50,000 and all special district governments: Have three years to comply (by April 24, 2027).
After these deadlines, state and local governments must maintain WCAG 2.1 Level AA standards for their digital content.

Why Were These Regulations Made Now?

Many state and local governments now offer most of their services, programs, and activities online and through mobile apps. This shift has increased the risk of people with disabilities facing barriers when trying to access essential services or participate in civic activities.

As a result, many organizations sought guidance from the federal government on what ADA compliance looks like for digital content. The Department of Justice‘s (DOJ) new rule provides that clarity by outlining specific technical standards for measuring compliance.

Associate Attorney General Vanita Gupta emphasized this commitment, saying: “We will use all our tools, including enforcement, to ensure people with disabilities have equal access to online services.”

How Will the DOJ Enforce Compliance with ADA Title II?

The new rule will use existing methods for enforcement, including:
- Self-evaluation and Reporting: Organizations need to regularly check their websites and mobile apps to ensure they meet ADA standards and report their findings to federal agencies.
- Technical Assistance and Guidance: The DOJ and other agencies provide resources to help organizations understand and follow the ADA Title II guidelines.
- Public Complaints: Anyone affected by barriers on state or local government websites can file a complaint directly with the DOJ.
- DOJ Audits and Reviews: The DOJ periodically audits public entities’ websites and mobile apps to find issues that haven’t been reported through complaints.
What Are the Penalties for Non-compliance?

Government entities that don’t follow the new regulations could face legal trouble, fines, and orders to fix their websites. If an entity fails to meet the standards on time, several things could happen:
- Mediation and Resolution: Usually, the first step is mediation to help the entity understand the issues and find ways to fix them.
- Penalties and Fines: In severe cases or if problems persist, penalties can be imposed to motivate quick action.
- Mandated Corrective Actions: Entities might have to make specific changes, like redesigning their websites or updating mobile apps.
- Legal Action: If an entity continues to ignore the rules, the DOJ may take legal action.
State and local governments must take these regulations seriously and prioritize accessibility.

How State and Local Governments Can Achieve Compliance

To comply with ADA Title II, state and local governments must follow WCAG 2.1 Level AA standards. If you’re a government leader or a business working with public entities, here are some steps to ensure compliance:
1. Conduct an Audit: Start with a thorough web accessibility audit to identify any barriers to user access.
2. Make a Plan: After identifying the barriers, create a plan to address them, focusing first on the most critical issues.
3. Use Clear Communication: Use simple and clear language. Provide alternatives like text transcripts for videos and audio content.
4. Integrate Assistive Technologies: Regularly test your websites or apps with tools like screen readers to ensure they support various accessibility features.
5. Train Your Staff: Educate your team on best practices for web accessibility to ensure future accessibility.
6. Set Up Monitoring: Establish ongoing digital accessibility policies and regularly update your platforms based on user feedback, especially from users with disabilities.
7. Partner with Experts: Seek support from accessibility experts to ensure you meet ADA requirements.
8. Stay Updated: Keep up with WCAG standards and make necessary updates to your websites and apps.
Could These Updates Impact Private Businesses Eventually?

The current update focuses on public sector entities under ADA Title II. However, it could serve as a model for changes to Title III, which covers public accommodations and commercial facilities. This might lead to stricter and uniform accessibility standards in the private sector, affecting businesses and nonprofits interacting with the public.

Since the mid-1990s, the DOJ has included company websites, e-commerce platforms, and other digital experiences in defining public accommodations. Many U.S. courts have supported this view, ruling in favor of individuals who claim a company’s website is not accessible to people with disabilities.

However, any proposed rule changes will likely depend on various factors, including the outcome of the next federal election.

216digital is Here to Help

The new ADA Title II regulations are a significant step toward making digital spaces accessible for everyone, ensuring that state and local governments provide equal access to their services online. But navigating these changes can be challenging. That’s where 216digital comes in!

As leading experts in web accessibility, 216digital has the tools, knowledge, and experience to make your online space both compliant and welcoming for all. Our team will work with you to create a strategy that integrates WCAG 2.1 compliance into your development roadmap on your terms. Let us help you make your website compliant and welcoming for all users so you can focus on what you do best—serving your community!

Don’t wait. Schedule a complimentary ADA strategy briefing today to ensure your digital presence is accessible to everyone.
Greg McNeil

June 13, 2024

Legal Compliance

Accessibility, ADA, ADA Compliance, ADA Title II, ADA Web Accessibility, ADA Website Compliance
Navigating Digital Accessibility Regulation in 2024

Significant changes in digital accessibility legislation took place in 2023 that will significantly affect how businesses operate online in 2024. Accessibility has become a central focus in the United States Department of Justice, state legislatures, and even in Europe. These changes will have implications for businesses going forward, and it is essential for them to remain informed, assess their current status, and comply with the latest regulations.

To help you stay updated on these developments, we have created this blog post to assist you in keeping track of everything in the digital accessibility space.

ADA Digital Accessibility at the Federal Level in the US

In August 2023, the Department of Justice shared a Notice of Proposed Rulemaking (NPRM) about digital accessibility that’s been getting a lot of attention. This NPRM proposes a specific technical standard that state and local governments must follow to meet their existing obligations under Title II of the ADA.

Key points from the NPRM proposals include:

WCAG 2.1 AA

The proposal suggests using WCAG Version 2.1, Level AA, as the rules for making websites and mobile apps easier to navigate. WCAG stands for Web Content Accessibility Guidelines, and it was created to help make the Internet more accessible for everyone.

Websites and Mobile Apps

These rules would apply to the websites and mobile apps that state and local governments use to share information or provide services to the public. For instance, if a local government lets people pay for parking using a mobile app, that app would need to follow these rules to make sure it’s easy for everyone to use.

Compliance Timeline

The DOJ also suggests that state and local governments follow these technical standards within two or three years after the final rule is published, depending on their population size. Smaller public entities, with populations under 50,000 people, would have three years to comply. In contrast, larger ones, with populations of 50,000 or more, would have two years to meet the standard.

Additional details are available in the NPRM‘s “Requirements by Entity Size” section.

State-led Legislation for Digital Accessibility

While federal regulations set a baseline, several states are proactively addressing digital accessibility within their own jurisdictions. Let’s look at some notable examples:

California Assembly Bill 1757

California has introduced Assembly Bill 1757. This bill aims to make it illegal for any provider of online resources to create, license, distribute, or maintain an internet website for public use that does not meet the accessibility standards outlined in the [WCAG 2.1 Level AA].

If this bill becomes law, it may have an impact on business activities within the state, as well as have personal consequences for individual web developers. Developers may find themselves facing lawsuits from both businesses and individuals with disabilities. The recent changes to the bill eliminate the possibility of developers claiming ignorance, as the responsibility threshold has shifted from “knowingly or intentionally to include “negligently” engaged in constructing an inaccessible website. Furthermore, the updated wording prevents developers from shifting liability to the companies that hired them.

AB 1757 is currently under consideration by the Senate Judiciary Committee, and there is heightened attention on whether it will progress into law. All eyes are on this legislation, anticipating its potential implications.

Rhode Island Bills 2023 H-5106 and S-0105

Senators Ujifusa and Representative Vella-Wilkinson are focused on the DOJ’s NPRM proposal. They’ve put forward two bills in Rhode Island: 2023 H-5106 (PDF) and 2023 S-0105 (PDF). These bills aim to make sure that all new websites available to the public follow the ADA’s digital accessibility rules before they go live. On the other hand, existing public websites have until July 1, 2028, to meet WCAG 2.1 AA standards.

The Minnesota House Bill HF-480

Minnesota has proposed Bill HF-480, aiming to allocate funds to the Minnesota Council on Disabilities. The goal is to offer training, aid, and assistance to cities and counties, helping them meet the required standards for website accessibility. Additionally, the bill proposes an annual report detailing the figures related to website accessibility training, technical support, and outreach. It also includes estimates of the costs involved in implementing recommended changes to the websites of cities and counties.

Rhode Island’s Digital Accessibility and Equity Governance Board

Governor Healey of Massachusetts is following in the footsteps of Rhode Island and Minnesota by taking a proactive stance on digital accessibility. She recently signed an Executive Order creating the Digital Accessibility and Equity Governance Board. The board’s goal is to make sure that all digital applications are fully functional and accessible to everyone.

The board will establish and maintain standards, guidelines, and policies for digital accessibility and equity. It will also collaborate with other executive branch offices and agencies to develop procurement policies, contractual standards, and other relevant documents that support digital accessibility efforts.

Hawaii’s HB1419 Bill

On January 1, 2023, Hawaii’s Bill HF-480 brought in the “Hawaii Electronic Information Technology Disability Access Standards” to make digital content more accessible. As of July 1, 2023, all state organizations must check these access standards and update their rules, policies, and procedures for getting and creating digital content.

Kansas Takes a Different Approach

While some states are becoming stricter about digital accessibility, Kansas is making headlines with a unique law. As of July 1, 2023, The Act Against Abusive Website Access Litigation allows local businesses to take legal action against individuals and their lawyers who file lawsuits about website accessibility under the ADA.

The purpose is to counter what is considered “abusive” litigation and seek compensation for defense costs and even punitive damages. Lawsuits can be filed in any jurisdiction. However, this Kansas law will only be in effect until the Department of Justice issues regulations on website accessibility under Title III of the ADA.

The European Accessibility Act

Looking beyond the US, the European Accessibility Act (EAA) is set to bring about substantial changes. With a looming deadline of June 28, 2025, the act aims to improve the accessibility of products and services. This includes public and private websites and mobile applications, including US-based companies selling to the EU sector.

Before the EAA, different accessibility rules existed throughout EU member states, making it difficult for digital product vendors and purchasers. The EAA has standardized accessibility requirements, making it easier for everyone involved.

But suppose you are an online business selling to the EU sector. In that case, it is crucial to make sure that your practices comply with the European Accessibility Act before the deadline arrives.

Implications for Online Businesses

Staying informed about digital accessibility legislation is essential for online businesses aiming to foster inclusivity and avoid legal challenges. The 2023 announcements at both federal and state levels in the US and the impending deadline in the EU underscore the global importance of ADA compliance.

Businesses should closely monitor updates, assess their current digital accessibility status, and take steps to align with the latest regulations. By doing so, they not only mitigate legal risks but also contribute to a more accessible and inclusive online environment.

Preparing for the Future with 216digital

Regardless of where you are on your journey, we’re here to help. At 216digital, we can assist you in developing a strategy to integrate WCAG 2.1 compliance into your development roadmap on your terms. Our expert team will assess your website, provide recommendations, and implement the necessary adjustments to make sure your website meets the latest accessibility standards.
Contact us today to schedule a complementary ADA Strategy Briefing so that you can confidently embrace the future of digital accessibility.

Greg McNeil

February 27, 2024

Legal Compliance

Accessibility, ADA Compliance, ADA Lawsuit, ADA non-compliance, ADA Website Compliance, digital accessibility, Website Accessibility
Why Accessibility Overlays Might Make You a Target
For many website owners, ensuring their site is accessible to everyone, especially those with disabilities, is a priority. This makes sense, not only from an ethical standpoint but also from a legal one. Web accessibility has become a hot topic, with the Americans with Disabilities Act (ADA) taking action against websites that fail to provide equal access. One solution that has garnered attention is the use of overlay widgets. However, if you’re considering using overlay widgets to meet these demands, pause! This may not be the solution you think it is.

In this post, we will explore the pitfalls of relying on such solutions and why they may not be the best choice for safeguarding your online business.

What is an Overlay Widget?

In simple terms, an overlay refers to tools or technologies that incorporate third-party code, typically JavaScript, into a webpage to enhance accessibility. Over recent years, these overlays have surged in popularity and are now featured on numerous websites across the internet. Among the many available, UserWay and accessiBe stand out as the top contenders on the market.

For a monthly charge, these tools claim to offer complete ADA and WCAG compliance, shielding them from litigation and an improved user experience for people with disabilities, all by adding just a single line of code to a website.

On the surface, it sounds ideal for website owners wanting a quick solution. But the truth is more complex.

What Do Accessibility Overlays Claim to Offer?

These overlay companies often promise three key concepts to consumers:
1. Your website will be fully accessible
2. Their technology will automate fixes, removing the need for web accessibility experts.
3. Their products will protect you from accessibility lawsuits.
Does it sound too good to be true? It is. While overlays might seem like a cost-effective solution for web accessibility, they might leave hopeful business owners with a target on their backs.

Accessibility Experts Voicing Concern

Experts in web accessibility have expressed skepticism about the effectiveness of accessibility overlays. Many experts argue that these tools may create a false sense of compliance and fail to address the root causes of accessibility issues.

Around 800 experts in accessibility have promised not to support, suggest, or use overlays that pretend to comply with laws or standards automatically. Karl Groves, an industry expert with over 20 years of experience, has put together a detailed fact sheet and statement from these experts, and it’s available on overlayfactsheet.com as a helpful online resource.

But why are these experts opposing overlays? First, we have to talk about ADA Compliance.

What is ADA Compliance?

While using an overlay may help meet some rules in accessibility standards, it cannot ensure

Conformance means meeting or satisfying the requirements of the web accessibility standards. According to Web Content Accessibility Guidelines (WCAG), the ‘requirements’ for web accessibility are called Success Criteria. To conform to WCAG’s guidelines, you must meet or satisfy all the Success Criteria.

Since conforming to a standard involves meeting all its requirements, products that claim to bring a website into compliance but cannot fix all issues should be approached with caution.

Why Overlays Are Not Fully Accessible

Here’s a simplified analogy: Imagine a pothole in the road. Instead of fixing it properly, someone places cardboard over it. It might look covered, but it’s still there, and it’s just a matter of time before someone falls through.

Similarly, while overlay widgets might give the appearance of an accessible website, they often merely cover up underlying issues. The worst part? Sometimes, they introduce new problems.

The Limitations of Accessibility Overlays

While overlays may provide some surface-level improvements, they often fail to address the comprehensive requirements for ADA compliance. Automated fixes can be incomplete or inaccurate, leaving certain accessibility issues unaddressed and potentially leading to legal consequences.

Here’s why:
- Partial Fixes: While overlays can assist in certain areas, like making text bigger for those with vision problems, they don’t treat the root problems in the website’s code, leaving site owners vulnerable to ADA lawsuits.
- Inconsistency: Overlay performance can be unpredictable across different devices and browsers, particularly on mobile.
- False Assurance: Sole reliance on overlays can be deceptive. They detect only about 30% of accessibility barriers. The intricate WCAG guidelines mean that overlays can only handle some necessary adjustments. A hands-on review is needed to find the remaining 70% of issues.
- User Experience: Some overlay tools give users an overwhelming number of choices, making things more perplexing or even creating new hurdles for disabled users.
- Conflicts with Assistive Tools: Many people with disabilities use specific tools to navigate the web. Overlays can disrupt these tools, making the website even less accessible.
To learn more about how overlay widgets fail to make a website compliant, check out our blog post, Why AI & Overlay Widgets Fail ADA Website Compliance.

Overlays Don’t Protect Against Web Accessibility Lawsuits

Many website owners opt for overlay widgets, believing they will shield them from potential lawsuits. However, this couldn’t be farther from the truth. Some advocates argue that these overlays can create a false impression of compliance, attracting attention from individuals keen on holding non-compliant websites accountable or with a desire for a quick payout.

At the 2021 Digital Accessibility Legal Summit, Jeremy Horelick, Jason Taylor, and Richard Hunt discussed overlays being marketed as one-step software solutions for website accessibility. The answer was a clear no when asked if overlays reduce the risk of litigation expenses.

“They absolutely do not. And there are two reasons why this is true. The first reason is simply because they don’t actually fix websites. […]

The other reason is because the law firms, not all the law firms, but many of the law firms that are in this area do not care whether the website is really accessible or not. Their desire is to find something that they can identify as an error, usually by measuring it against WCAG, and if they can find that error, they can file a lawsuit in good faith. Remembering that their goal is to settle the lawsuit as soon as possible.”

Accessibility Overlays Can Make You A Target

Using an overlay widget is like announcing, “I’m trying to be compliant.” But when that compliance is only surface-deep, it can make you an easy target for litigation.

So you might wonder, “Why would an overlay make me a target?” Here’s a deep dive into the mechanics:

Lawsuit Mechanics

Lawsuits related to web accessibility often rely on demonstrating that a website remains non-compliant despite attempts to rectify it. Scanning tools most plaintiff firms use won’t reliably pick up the solutions provided by widgets and overlays. While suggesting an effort to comply, overlay widgets often fall short of genuine accessibility. As such, your site will “scan” in exactly the same way and not at all change the initial filter most plaintiff firms use to determine who to go after. This discrepancy provides an avenue for legal action.

Lawsuit Claims

Most lawsuits nowadays don’t primarily address WCAG compliance concerns. They cite issues of functional use—things that impact a person with a disability’s ability to use a site. However, overlays won’t affect those claims and will often worsen the functionality. Many claims pinpoint overlay widgets’ inconsistent and ineffective nature, emphasizing that they don’t provide a uniform solution for every user.

Public Record Evidence

Implementing a widget or overlay on your website highlights potential shortcomings in your approach to accessibility. This public display could be referenced in future legal proceedings as evidence of your organization’s consistent lack of attention to accessibility. In the context of the ADA, this could be seen as a failure to adapt policies, practices, and procedures to ensure accessibility.

2023 Overlay Litigation Wave

In 2023, we saw 933 websites become targets for ADA non-compliant lawsuits because they relied solely on overlay widgets. This marked a notable 62% increase from the previous year. The legal actions brought against these companies often point fingers at the features and functions of these widgets, claiming they contribute to accessibility issues, along with the common failures outlined in WCAG.

Attorney Richard Hunt, who specializes in digital ADA cases at Hunt Huey PLLC, was among the first to focus on such legal matters. In a post titled “Is there a silver bullet for ADA website accessibility? Sorry, but the answer is no,” he emphasized that using an accessibility overlay or widget won’t protect businesses from ADA lawsuits.

Hunt stated, “If your business wants to avoid getting sued under the ADA because of an inaccessible website an accessibility overlay or widget isn’t going to help you. I can say this with some certainty because in the last two weeks alone five lawsuits have been filed against businesses that use an accessibility widget or overlay on their websites.”

Privacy Concerns

Besides potential legal problems tied to web accessibility, privacy concerns have surfaced. Overlays that automatically activate certain features, such as those for screen reader or speech recognition users, do this by detecting when an assistive technology is in use on the device. This reveals that the person using the device at that time has a disability. In some instances, it even exposes more personal information, like age, ethnic background, or preferred gender. Collecting such data should only happen with the informed consent of the person to whom it belongs.

Privacy Concerns and Legal Consequences

Some overlays keep users’ settings consistent across different websites that use the same overlay. This is achieved by placing a cookie on the user’s computer. When the user activates a setting for a specific overlay feature on one site, the overlay will automatically activate that feature on other sites.

Although the overlay company may believe they are benefiting the end user, the major privacy issue is that the user never agreed to be tracked, and there’s no way to opt out. Because there’s no opt-out option (except for explicitly turning off that setting), this poses a risk under the General Data Protection Regulation (GDPR) and California Consumer Privacy Act (CCPA) for the overlay customer.

What Actions Should Website Owners Take?

For website owners, the lesson is clear. While overlay widgets might seem like an easy fix for web accessibility, they’re anything but. Not only do they fail to address the root accessibility issues, but they also paint a target on your back for potential litigation.

If you’re a website owner considering using overlay widgets, tread cautiously. Instead of looking for shortcuts, invest in a comprehensive web accessibility evaluation and manual review from the experts at 216digital to ensure that all accessibility barriers are identified and addressed correctly.

It is crucial to recognize the limitations of AI and use it in conjunction with other accessibility tools, such as regularly testing and evaluating accessibility compliance through automated and manual audits. By adopting a multi-faceted approach to accessibility, you can minimize the risk of legal action and make sure that digital content is accessible to all users.

Team Up with 216digital

After years of analyzing ADA lawsuits, we’ve discerned the tactics used by law firms to pinpoint websites for groundless ADA claims and how to protect businesses against them. Our team of accessibility experts can also develop strategies to integrate WCAG 2.1 compliance into your development roadmap on your terms to save you from potential legal headaches in the future.

Remember, web accessibility is not just about legal compliance but about creating an inclusive web for all. So don’t wait any longer—find out where you stand by scheduling a complementary ADA Strategy Briefing today.
Greg McNeil

February 27, 2024

Legal Compliance

Accessibility, ADA Compliance, ADA Web Accessibility, ADA Website Compliance, Ai and Overlay Widgets, Overlay widgets, Website Accessibility, Website Accessibility Tools
2023 Web Accessibility Lawsuit Trends and Insights
Web accessibility is no longer just a buzzword for the tech-savvy; it has become a crucial aspect of every online business. The surge in ADA-related lawsuits in 2023 serves as a wake-up call for website owners, developers, and digital marketers. Ignorance is no longer bliss, and understanding the trends can be the key to safeguarding your online presence in 2024.

For companies of all sizes, this raises a pair of essential questions:
1. What is behind this rise in litigation?
2. Is my business at risk?
In this post, we break down the 2023 web accessibility lawsuit trends and provide insights to help you navigate the evolving landscape. In today’s digital world, being informed isn’t just advantageous—it’s essential.

A Shift in Web Accessibility

Advocates for digital platforms being included in the Americans with Disabilities Act (ADA) have made significant progress in 2023. The Department of Justice (DOJ) declared that by 2024, all state and local websites must adhere to WCAG AA standards. This move shows that websites and mobile apps are just as important as physical places.

Right now, the declaration above only applies to state and local government groups under Title II of the ADA. But private businesses, often under Title III, might have to follow similar rules soon. This success, along with other updated state laws like California’s Assembly Bill (AB) 1757, has encouraged supporters to take legal action in record numbers.

A Closer Look at the Numbers

The numbers are in, and they’re striking: Plaintiffs filed 4,605 federal and state-filed ADA-related digital lawsuits, 683 more than in 2022. 3,086 of these lawsuits went through federal courts, whereas 1,519 were in state courts. This shift emphasizes the growing significance of state lawsuits in digital accessibility.

New York and Web Accessibility Lawsuits

In fact, Plaintiff firms file almost 75% of all lawsuits in New York federal or state courts. Although we have seen increased lawsuits outside the prominent three regions of New York, California, and Florida, New York is still the king.

But don’t get excited if you are outside of these states. The internet has no boundaries; having customers in a state is enough to be susceptible to legal action. For instance, your online business may be in Ohio. Still, a customer in New York State can file a claim in New York for your website having web accessibility barriers. Your location has no bearing.

But what if you are just a small online business? You should be safe, right?

What Industries Are Most at Risk?

eCommerce websites are more likely to be sued than other industries, such as Food Service and Education. In fact, 80% of all lawsuits are against eCommerce websites, with the majority of cases filed by visually impaired or blind individuals. This is because more and more businesses are selling online than ever before. eCommerce websites constantly change and frequently have complex functionality, making them more susceptible to legal issues.

Want to know more about eCommerce ADA litigation? In that case, check out our article, “Retail is the Prime Target for ADA Web Accessibility Lawsuits.“

Suppose you have already been sued for web accessibility, you should be safe from subsequent lawsuits, right? Unfortunately, the data says otherwise.

Copycat Accessibility Lawsuits Are On the Rise

It is not surprising that 25% of web accessibility lawsuits in 2023, more than 700, were filed against businesses that have previously been involved in ADA digital lawsuits. This highlights the prevalence of legal issues related to accessibility.

Why the Surge in Copycat Lawsuits?

Unfortunately, the ADA does not protect a company with an inaccessible website, regardless of how often they have been sued, when the lawsuits occurred, or whether they settled to make improvements.

Any new user who encounters barriers on a website can file a lawsuit against that website or any other websites or apps owned by the same company. This may lead to copycat lawsuits from new plaintiffs.

The bottom line? If digital content is not accessible, the risk of legal repercussions is substantial. But how should online businesses protect themselves against ADA claims in 2024? Web accessibility widgets and overlays?

Web Accessibility Widgets and Overlays

Many companies that offer accessibility widgets claim to be the ultimate solution for overcoming barriers and even promise legal protection from ADA cases. If you search on Google for web accessibility solutions, you’ll find numerous companies competing for your attention. However, these widgets fall short of being the magical fix many hoped for.

In 2023, 933 businesses using accessibility widgets faced lawsuits, a 62% increase from the previous year. These legal actions often point out the widget features and functionality as causes of accessibility barriers, along with common WCAG failures. But why is that the case?

The Pitfalls of Web Accessibility Widgets and Overlays

One major issue with accessibility widgets is that they don’t address the fundamental access barriers on websites. Although these issues are not visible to most users, they pose significant challenges for people with disabilities.

Furthermore, overlays can only identify 30% of web accessibility errors. Unfortunately, overlay tools struggle to handle the complexity of WCAG guidelines and cannot make the comprehensive changes necessary. The remaining 70% of issues can only be identified through manual testing.

The trend of filing ADA complaints and lawsuits against companies using accessibility widgets will continue into 2024. Achieving complete ADA or WCAG compliance requires more than just overlays or widgets. So, what should you do?

How to Keep Your Online Business Safe

It’s crucial to make sure that your website and online applications follow ADA web accessibility rules to lower the risk of getting sued. This might mean teaming up with web accessibility experts to review your site and make any necessary changes.

To avoid ADA web accessibility litigation, online businesses should take the following steps:
1. Review your website: Conduct a comprehensive web accessibility audit to identify all barriers.
2. Make a plan: Once you find the barriers, address the issues identified in the audit. Start with the most critical issues first.
3. Train Staff: Show your team how to follow the best practices for web accessibility and keep things accessible in the future.
4. Use helpful tools: Frequently test your websites or apps for accessibility with tools like web accessibility monitoring services.
5. Accessibility Partner: Get support from experts who focus on accessibility to make sure you’re following ADA requirements.
6. Stay Updated: Stay updated on WCAG standards and update your websites and apps when needed.
Conclusion

In today’s digital age, web accessibility is non-negotiable. Whether you aim to protect against ADA lawsuits or strive for WCAG 2.2 AA compliance, taking immediate and comprehensive action is vital. At 216digital, we understand the nuances of ADA lawsuits and can help develop a strategy to integrate accessibility into your development roadmap.

Schedule a complimentary ADA Strategy Briefing today to learn more about securing ongoing, real-world accessibility on your terms.
Greg McNeil

January 23, 2024

Legal Compliance

ADA Compliance, ADA Lawsuit, ADA Web Accessibility, ADA Website Compliance, Web Accessibility, web accessibility lawsuits
Web Accessibility: The Wayfair Example
Wayfair, one of the internet’s leading home goods and furniture retailers, was hit with another class action lawsuit in June. The lawsuit alleged that the company’s website was not accessible to legally blind customers.

In this legal action, Seana Cromitie, a visually impaired woman, claimed that she encountered accessibility issues while attempting to purchase a shoe rack from Wayfair’s website. These issues, she argued, denied her the same level of access to Wayfair’s online products, content, and services as sighted customers.

Cromitie’s lawsuit is part of a growing wave of web accessibility litigation filed under the Americans with Disabilities Act (ADA). But what can business owners learn from Wayfair’s recent allegations and the dangers of ignoring web accessibility?

Below, we’ll discuss the plaintiff’s claims, providing tips for avoiding and responding to ADA demands.

The Americans with Disabilities Act

The Americans with Disabilities Act (ADA) is a civil law designed to protect the rights of people with disabilities in all areas of public life. While it doesn’t specifically mention websites, the courts have made it clear that the ADA applies to websites, whether they’re owned by government agencies or private businesses.

In July 2023, the Department of Justice (DOJ) suggested a new rule to ensure that online services provided by state and local governments become more accessible under Title II of the ADA. Although Title III, pertaining to privately owned businesses, has yet to see changes, the DOJ published guidance in 2022 confirming its position that the ADA does apply to websites, stating:

“…the Department has consistently taken the position that the ADA’s requirements apply to all the goods, services, privileges, or activities offered by public accommodations, including those offered on the web.”– US Department of Justice | Guidance on Web Accessibility and the ADA (2022)
– US Department of Justice | Guidance on Web Accessibility and the ADA (2022)

Failure to do so can result in legal action, as Wayfair’s recent case demonstrates. But what are the legal standards for ADA compliance?

For an in-depth look at the proposed changes to Title II of the ADA, check out our article “The ADA’s New Shift Towards Web Accessibility”

Title III and WCAG

Due to the DOJ’s delay in releasing technical standards for web accessibility, confusion has emerged among businesses and website owners about what is required for ADA compliance.

As a result, the DOJ often refers to the Web Content Accessibility Guidelines (WCAG) as the standard for ADA web compliance. The DOJ has even joined lawsuits against businesses and organizations that have failed to meet the WCAG standards.

However, Title III of the ADA has no legal standard for web accessibility— even achieving WCAG 2.1 AA conformance does not fully protect you from lawsuits.

So, how can businesses close the door to potential litigation? Let’s take another look at Wayfair’s June court case.

Background to the Wayfair’s 2023 ADA Case

The plaintiff, Seana Cromitie, asserts that Wayfair’s website falls under the definition of a public accommodation in Title III of the ADA. Therefore, it is considered discriminatory and illegal to deny people with disabilities access to the same products and services offered to others.

The 2023 court case centers on issues that made Wayfair’s website challenging for screen reader users. Screen readers are essential tools for users with visual impairments, as they provide an auditory interpretation of the website’s content. However, Wayfair’s website lacked the necessary features to accommodate these users.

Wayfair’s Web Accessibility Barriers

The class action complaint cites several specific issues with Wayfair’s website. These key issues include:
- Missing alternative text (or alt text): Alt text is vital for users to understand what an image looks like and its function on a website. Wayfair’s website had numerous images without meaningful alt-text, making them incomprehensible to visually impaired visitors.
- Incorrectly Formatted Lists: Screen readers rely on well-structured lists for proper navigation. When the lists aren’t correctly formatted, the screen readers might read items in the wrong order or convey the list incorrectly, making it challenging for users to understand the content and move around the site.
- Unannounced Pop-ups: Pop-up windows on the website without proper announcements caused confusion for screen reader users, hindering their navigation and comprehension.
- Broken and “empty” hyperlinks: Broken links can disrupt the user’s experience by not explaining where the link or image will lead. This can frustrate users and make accessing various parts of the website challenging.
- Missing Keyboard Navigations: Requiring a mouse for specific actions creates barriers for people with motor impairments or those who rely on keyboards or other assistive tools.
Unfortunately, these barriers are widespread, leaving millions of businesses unknowingly open to frivolous lawsuits.

Common Web Accessibility Barriers

In their annual analysis of the top 1 million website home pages, WebAIM (Web Accessibility In Mind) found that 96.3% of home pages had detectable failures of WCAG.

According to their finding, many of the same barriers cited in Wayfair’s case appear in their top WCAG 2 failures, including 58.2% of homepages missing alt text for images, while 50.1% had empty links. However, both of these barriers can take seconds to remove.

Suppose businesses recognize their mistakes early and make immediate changes. In that case, the cost to correct these barriers won’t accumulate or cost as much later. Remediating thousands of issues on an e-commerce website will require a substantial investment while building for accessibility will cost much less over time.

No Business is Too Small

While Wayfair is a major retailer, small businesses are also covered by Title III of the ADA. They are responsible for providing web content that works for all users, regardless of their abilities.

In fact, smaller companies with revenues under $25 million have been frequent targets. They accounted for 77% of ADA non-compliance cases in the first half of 2023, and many plaintiffs allege the same issues cited in the Wayfair class action case.

So, what steps can your website take to ensure ADA compliance?

A Step Towards Web Accessibility

Making sure your website is web-accessible is not only a legal requirement but also a moral and business imperative. This may involve working with web accessibility experts to conduct an audit and any necessary changes.

Here are some steps you can take to improve your web accessibility:
1. Conduct a web accessibility audit: Conduct a comprehensive web accessibility audit to identify all web accessibility barriers.
2. Make a plan: Familiarize yourself with WCAG’s guidelines and work to meet or exceed their standards. Address the issues identified in the audit, prioritizing the most critical issues first.
3. Consider a dedicated accessibility team: Partner with an accessibility team to oversee ongoing web accessibility efforts and ensure compliance with ADA requirements.
4. Train and Education: Educate staff on WCAG best practices and how to maintain accessibility standards moving forward.
5. Regular Monitoring: Continuously monitor your website for accessibility issues and address them promptly.
6. Stay up-to-date: Stay informed about ADA web accessibility requirements and update websites and apps as needed.
Start Your Journey to ADA Compliance

The recent lawsuit against Wayfair is a stark reminder of the importance of web accessibility under the Americans with Disabilities Act (ADA). It’s not just a legal requirement; it’s a moral and business imperative—no matter the size of your business, accessibility matters. The case of Wayfair demonstrates the very real risks of ignoring web accessibility and the potential for costly legal action.

Whether you want to protect against a frivolous ADA accessibility lawsuit or become WCAG 2.1 AA compliant, 216digital has you covered. After years of analyzing ADA lawsuits, we’ve discerned the tactics used by law firms to pinpoint websites for groundless ADA claims and how to protect businesses against them. Our team of accessibility experts can also develop strategies to integrate WCAG 2.1 compliance into your development roadmap on your terms.

Don’t wait for a lawsuit to push you into action. Schedule a Complimentary ADA Strategy Briefing with 216digital to take the first step towards website accessibility.
Greg McNeil

October 26, 2023

Legal Compliance

Accessibility, ADA Compliance, ADA Lawsuit, ADA non-compliance, ADA Website Compliance, Website Accessibility
The ADA’s New Shift Towards Web Accessibility
In an age where our online and offline worlds are increasingly intertwined, ensuring web accessibility for all is not just a matter of convenience—it’s a matter of civil rights. Enter the U.S. Department of Justice, which is poised to take a monumental step toward making the virtual world more inclusive. As they gear up to propose a new ADA Title II Web Accessibility Rule, we delve deep into its implications and the future landscape of digital accessibility.

What is the American with Disability Act?

The Americans with Disabilities Act (ADA), enacted in 1990 by President George H.W. Bush, is a civil rights law that prohibits discrimination against individuals with disabilities in all areas of public life. This includes jobs, schools, transportation, and public or private places open to the public. The primary goal of this law is to ensure that people with disabilities have the same rights and opportunities as everyone else.

For instance, the law required that employees with disabilities have the adjustments they need at work, that those with hearing or sight issues can communicate effectively, and that buildings are accessible.

Often, we think of the ADA in terms of physical places. But what about online spaces, like websites?

Is ADA Compliance Mandatory for Websites?

From the start, we knew the ADA would impact physical stores, but it wasn’t clear if it would also apply to websites and online apps. As the internet became a major way for customers to connect with businesses, the rules for ADA and website accessibility had to evolve.

Redefining the ADA

In late 2021 and early 2022, the Department of Justice (DOJ) made several agreements about making COVID-19 vaccine websites more accessible. The DOJ stated that the ADA’s requirements should apply to all goods and services offered by public accommodations, including those provided online.

Up to this point, the absence of clear standards has caused confusion about what “ADA compliance” means for online content. This has led to inconsistent rulings in federal courts and has caused many businesses, numbering in the tens of thousands, to face predatory litigation.

The Department of Justice and Web Accessibility

The DOJ, responsible for enforcing parts of the ADA, recently explained its stance on website accessibility. In March 2022, they shared guidelines on this topic. They emphasized that the ADA’s rules do apply to online content.

However, they didn’t set clear standards for what makes a website compliant. In fact, the DOJ mentioned they don’t have a detailed set of rules. Still, they believe the ADA’s general principles of fairness and clear communication should apply to websites.

Despite this, the DOJ’s March 2022 guidelines didn’t spell out clear options or ways businesses can make sure their websites are accessible. They only cited third-party resources, which do not have the force of law.

WCAG is the Golden Standard for Web Accessibility

In the absence of set standards, the Web Content Accessibility Guidelines (WCAG 2.0 & 2.1) Level A.A. has become the go-to standard. Many federal courts recognize WCAG as a trusted guideline for making websites accessible. In fact, many website-related lawsuits end with an agreement to follow WCAG standards.

Although WCAG is widely respected, it’s not legally binding. A private international industry group, not a government body, creates and maintains these guidelines.

DOJ Proposes New ADA Web Accessibility Rule

On July 25, 2023, the 33rd year since the ADA was introduced, the DOJ proposed a rule to improve online services offered by state and local governments more accessible.

This marks the first time in the history of the ADA that the DOJ has proposed rule on website accessibility. The DOJ recognizes that many online services have left out people with disabilities in the past. This new rule aims to set clear guidelines for all state and local government programs, services, and activities accessible.

What Does the New Ruling Include?

The proposed rule is expected to give clear technical guidelines on how to make websites more accessible. According to a White House statement, this will include adding text descriptions of images for those using screen readers, putting captions on videos, and allowing keyboard-only navigation for those with limited mobility.

President Joe Biden shared on X (formerly Twitter): “Our Administration’s new proposed web accessibility rule will improve online accessibility to state and local services for nearly 50 million people with vision, hearing, cognitive, and manual dexterity disabilities – One more step towards a more inclusive and accessible America”.

The details of this rule will be available in the Federal Register. The public can share their thoughts on it for 60 days at regulations.gov

Impact of the New ADA Web Accessibility Rule

The new rule will affect public programs and services like employment, education, voting, healthcare, and transportation schedules. Its primary goals are to:
1. Students with disabilities can fully understand and access their class materials, even in advanced subjects like math and science.
2. Upgrade voter registration websites so that those with disabilities can easily sign up on their own.
3. Provide better online information about buses and trains to assist people with disabilities in commuting.
During a press conference, Associate Attorney General Vanita Gupta emphasized, “[I]t is now more important than ever to ensure that there are clear standards for what state and local programs must do to make their online programs, services, and activities accessible to people with disabilities.”

What Online Businesses Must Keep in Mind

The DOJ has introduced a new rule aimed at making sure everyone, including those with disabilities, can use online content easily and fairly. This rule not only sets a clear legal standard but also addresses other online accessibility issues. This includes the role of third-party content creators, when making a website accessible might be too difficult, and grace periods for fixing sites.

Right now, this rule is only for state and local government groups under Title II of the ADA. However, private businesses, often covered by Title III, might soon have to follow similar standards. So, private companies should keep an eye on this rule as it might hint at future regulations for them.

Preparing for the Future with 216digital

Regardless of where you are on your journey, we’re here to help. At 216digital, we can help develop a strategy to integrate WCAG 2.1 compliance into your development roadmap on your terms. To learn more about how the ADA experts at 216digital can help build an ADA WCAG 2.1 compliance strategy to achieve ongoing, real-world accessibility on your terms, schedule a complementary ADA Strategy Briefing today.
Greg McNeil

October 5, 2023

Legal Compliance

Accessibility, ADA Compliance, ADA non-compliance, ADA Website Compliance, Website Accessibility
Understanding the New California Assembly Bill
Web accessibility is a topic that’s gaining significant traction in the digital landscape. If you’re a website owner, it’s essential to be aware of the ongoing changes in legislation, particularly the New California Assembly Bill. Why? Because these changes have the potential to affect your online business directly.

The New California Assembly Bill is a groundbreaking law focusing on making the web more accessible, not just for California but for everyone. But what does this mean for website owners?

What is the New California Assembly Bill?

On June 12, 2023, the California Assembly’s Judiciary Committee changed a proposed law, Assembly Bill (AB) 1757. AB 1757 has been completely revised from its original content. Initially, it proposed changes to laws associated with the court system. However, its current version has replaced that content with the language from AB 950, a bill that previously didn’t pass the house.

This change introduces new requirements for all websites and mobile apps of “business establishments” to meet certain accessibility guidelines, known as WCAG 2.1 Level AA.

The Web Content Accessibility Guidelines are internationally shared guidelines for improving web accessibility.WCAG included specific checkpoints and recommendations based on a principle-based approach to ensure all users can share the same experience regardless of disability or assistive software

But there is already well-established legislation for web accessibility. How is AB 1757 different?

Change in the Legal Landscape

While web accessibility has been a concern for many years, the new bill could profoundly change the legal landscape. By requiring conformance with WCAG 2.1, the bill would establish firm technical requirements for website accessibility. However, it would allow people with disabilities and businesses to sue third-party developers if they create non-compliant apps and websites.

People with disabilities could take legal action if a website stops them from getting the same access as everyone else. But these ideas aren’t new and already exist in legislation. So, businesses aren’t getting any unique advantages from this part of the bill. What’s really changing is that there will be more legal risks for companies and their website developers if they don’t follow the WCAG 2.1 AA guidelines.

A Supplement for California’s Unruh Act

California’s Unruh Act is a landmark civil rights bill that prevents businesses from discriminating against individuals based on sex, race, color, religion, and disability. If a company violates the Americans with Disabilities Act (ADA), it also infringes the Unruh Act. However, a recent court decision stated that the Unruh Act does not apply to online-only businesses.

With the introduction of the new California Assembly Bill, there is an extension in this space, but with a specific focus on web accessibility. The new bill supplements the Unruh Act by bringing digital spaces into the fold. It recognizes that, in today’s age, discrimination can also occur in online environments — regardless of whether those organizations have a physical office in the state.

The Impact on Online Business Owners

If you’re an online business owner, especially in California, this new bill might impact you in more ways than one:

WCAG 2.1 AA Becomes the National Standard

The bill has adopted the Web Content Accessibility Guidelines (WCAG) 2.1 AA as the de facto standard. You might face legal implications if your website or mobile app violates these guidelines.

This is a tall order considering that federal government websites only need to meet the less demanding WCAG 2.0 Level AA requirements. But according to the DOJ, many websites don’t even do that. Moreover, because all websites in the United States can be accessed in California, WCAG 2.1 AA will become the legal national standard for website accessibility.

No Transition Period

Once the bill becomes law, businesses won’t have a ‘grace period.’ Immediate compliance will be expected, so companies should be proactive in ensuring their digital platforms comply with WCAG 2.1 AA, or you might be at risk.

No Specific Provisions for Small Businesses

While accessibility is crucial, the bill doesn’t necessarily consider the potential undue hardship on small businesses. Many need more money or know-how to update their websites to meet and maintain WCAG 2.1 AA standards. Even the DOJ acknowledges that some small businesses might need more time to make these changes.

The threat of legal exposure might result in small businesses removing their websites, which could hurt their ability to drive customers to their business.

Potential Cost Increase for Web Development

One of the less-discussed implications is the potential liability for website and mobile app developers. If developers knowingly construct, license, distribute, or maintain a digital platform that fails to comply with WCAG 2.1 Level AA could be held accountable.

While this will likely incentivize developers to create compliant websites, it will also drive the cost of website development higher. This increase in pricing is due to the need for specialized skills and tools to ensure that sites and apps meet the required accessibility standards.

While upfront costs might be higher, ensuring your website is accessible can save potential litigation costs down the road. Furthermore, a more accessible website means a broader audience can engage with your content, leading to potential growth in business.

What Does This Mean For Website Owners?

If you’re a website owner, especially one with a limited understanding of web accessibility, you might feel overwhelmed. But here’s the deal:

Web and digital accessibility isn’t just about compliance; it’s about inclusivity. By ensuring your website is accessible, you’re expanding your audience base, catering to a broader demographic, and reinforcing your brand’s commitment to equality.

Yes, the initial steps toward compliance might seem daunting. And while the bill might not explicitly factor in the undue hardship on small businesses, it’s essential to recognize that accessibility is an ongoing journey, not a destination. Start with small steps:
- Educate Yourself: Understand the basics of WCAG 2.1 AA guidelines. They’re not as complex as they sound. Many online resources break them down into easily digestible recommendations.
- Seek Expertise: If you’re unsure about your website’s compliance, consider getting an accessibility audit. These audits, conducted by professionals, provide actionable recommendations.
- Developer Communication: If you’re in the process of building or revamping your website, communicate with your developers about the importance of accessibility. Remember, awareness is the first step.
Find Out If Your Website is WCAG-compliant

Recognizing the growing need for web accessibility compliance, companies like 216digital are at the forefront of web accessibility remediation. Leveraging years of experience and specialized tools, we can help you navigate the often complex waters of digital accessibility.

We will help develop a strategy to integrate WCAG 2.1 compliance into your development roadmap on your terms so that you can focus on the other tasks on your to-do list. Not only will they ensure your website meets the required standards, but we can also guide you in maintaining this standard in the future.

If you need clarification on whether your site complies with AB 1757’s WCAG 2.1 level-AA criteria, contact 216digital for a complementary ADA Strategy Briefing. We can help determine if your website is at risk of a lawsuit and offer fast and effective ADA compliance solutions that ensure your site is accessible to everyone and reduce your risk of litigation — letting you focus on what you do best.
Greg McNeil

August 25, 2023

Legal Compliance
An Insight On 2023 Digital Accessibility Lawsuits

Navigating the online marketplace as a business owner has never been more intricate. The echoing chime of “web accessibility lawsuit” has grown louder this year, and for many, the threat of a web accessibility lawsuit looms large.

Web accessibility, once a buzzword for the tech-savvy, is now a focal point for every online entrepreneur. And if the stats from 2023’s mid-year report are anything to go by, ignorance is not bliss. In fact, it’s downright risky.

Let’s dive deep into the data, exploring everything from the uptick in ADA non-compliance lawsuits to the pivotal “Dear Colleague” Letter recently released. In today’s digital world, being informed isn’t just advantageous—it’s essential.

Digital Accessibility Lawsuits Are on the Rise

The numbers are in, and they’re striking: An estimated 4,220 digital accessibility lawsuits are predicted by the end of 2023. This marks a staggering 182% rise from the 2,314 cases in 2018. This trend has shown no signs of slowing down. In fact, it’s only gaining momentum, especially in states like New York, Florida, and California.

This sunshine state has recorded a whopping 228 web accessibility lawsuit filings in just the first half of 2023. That’s a 30% increase from the 160 lawsuits filed in the first half of 2022. This trend highlights the imperative for businesses to be compliant, especially if they operate in these states.

But how can this data help online business owners? Let’s look at how websites are targeted in 2023 to help you mitigate the risk of an ADA lawsuit.

Which Industries Are Most at Risk?

From e-commerce platforms where seamless user experiences drive sales to educational institutions striving for inclusive online learning environments, the pressure to ensure equal access intensifies. With both legal implications and ethical considerations at stake, let’s delve deeper into which industries are most at risk in the current landscape.

E-commerce At The Forefront

E-commerce platforms are the usual suspects when it comes to ADA non-compliance cases. The U.S. Census Bureau’s Annual Retail Trade Survey (ARTS) highlighted a significant shift in consumer habits during the pandemic, leading to a 43% surge in e-commerce sales within its first year.

With the world shopping online more than ever, the demand for accessible e-commerce sites has never been higher. Since 2018, 406 of the top 500 e-commerce retailers have been hit with ADA digital lawsuits, with a striking 13% filed just this year.

These sites often become targets for digital accessibility lawsuits due to their vast online presence, intricate nature, ever-evolving content, and multi-platform structure. However, it’s crucial for e-commerce business owners to emphasize web accessibility, not only to avoid legal complications but also to ensure a positive customer experience.

For an in-depth look at e-commerce ADA litigation, check out our article “Retail is the Prime Target for ADA Web Accessibility Lawsuits.”

Industries in Focus: The Shift to Education

While e-commerce is a frequent target, there’s been a notable shift in the industries being targeted. In 2023, the education sector experienced a surge in legal cases, positioning it as the third most frequently sued industry. With increasing focus on accessibility within higher education and significant lawsuits against universities, this trend is expected.

The joint letter, “Dear Colleague,” from the Department of Education (DOE) and the Department of Justice (DOJ) in May 2023 delivered a comprehensive assessment of the relationship between the ADA and Section 504 and the online content produced by tertiary institutions.

This May 2023 document clarifies the requirements universities and colleges must adhere to remain ADA-compliant. Furthermore, the letter underscores the DOE and DOJ’s commitment to pursue institutions that fall short of compliance firmly. In line with the DOJ’s impending updates about online accessibility, this reinforces the importance of web accessibility in education.

Small Companies Bear the Brunt

Size doesn’t matter when it comes to ADA non-compliance. In fact, smaller companies with revenues under $25 million have been on the receiving end. They accounted for 77% of ADA non-compliance cases in the first half of 2023.

This figure will likely rise, as many large companies have already been the target of an ADA lawsuit in the past four years. They have since remediated their digital platforms and developed comprehensive accessibility initiatives.

This proves that no company is too small to be overlooked. As we enter the second half of 2023, smaller companies must begin taking action to make their online presence fully accessible. This is especially crucial as legal plaintiffs and firms shift their focus from just the large e-commerce players to a broader range.

Web Accessibility Widgets: A Double-Edged Sword?

Many businesses have adopted accessibility widgets in an attempt to meet ADA standards. However, these widgets haven’t been the magic solution many hoped for. Lawsuits against companies using these tools surged to 414 this year from 336 in 2022.

The trend of filing ADA complaints and lawsuits against companies using accessibility widgets will likely continue, as full ADA or WCAG compliance cannot be achieved using overlays or widgets alone.

One of the biggest problems with accessibility widgets is that they do not address the inherent access barriers on websites. While most of these issues are invisible to most users, they are significant barriers for people with disabilities.

Moreover, overlays can only detect 30% of web accessibility errors. Unfortunately, the WCAG guidelines are too complex for overlay tools to provide the robust modifications required. The remaining 70% of the issues are seen only through manual testing.

For more information about the risks of overlay widgets, check out our article, Why AI & Overlay Widgets Fail ADA Website Compliance.

Why the Surge in Web Accessibility Lawsuits?

The ADA’s legal scope concerning digital accessibility remains somewhat ambiguous, leaving substantial room for interpretation. Established in 1990, the ADA predates the Internet’s widespread use, leading many to believe it was solely for physical establishments. However, the digital landscape has drastically evolved since the ADA’s inception.

The Internet is indispensable today, offering avenues for communication, entertainment, goods, and services. With countless businesses operating online, inaccessible websites mean individuals with disabilities miss out on a significant societal aspect, making businesses susceptible to legal actions.

The rising number of lawsuits against companies not offering inclusive web interfaces, coupled with the DOJ’s active participation in verdicts against them, indicates the ADA’s relevance to online platforms. Notably, the DOJ’s prospective Title II regulations and President Biden’s emphasis on online accessibility in July of this year have further underscored its importance. If companies remain non-compliant, the surge in lawsuits is likely to persist.

Reduce Your Risk with 216digital

In today’s digital age, web accessibility is more crucial than ever. As an online business owner, it’s essential to recognize the significance of ADA compliance, both ethically and legally. Investing in web accessibility widens your customer base and shields you from potential legal repercussions.

Now is the time to act, as the cost of non-compliance could be detrimental.
Whether you want to protect against a frivolous ADA accessibility lawsuit or become WCAG 2.1 AA compliant, 216digital has you covered. After years of analyzing ADA lawsuits, we’ve discerned the tactics used by law firms to pinpoint websites for groundless ADA claims and how to protect businesses against them. Our team of accessibility experts can also develop strategies to integrate WCAG 2.1 compliance into your development roadmap on your terms. So don’t wait any longer—find out where you stand by scheduling a complementary ADA Strategy Briefing today.

Greg McNeil

August 25, 2023

Legal Compliance

Understanding Web Accessibility

The Rise of ADA Lawsuits

Direct Costs: Settlements and Legal Fees

Indirect Costs: Reputational Damage and Lost Opportunities

Long-Term Costs: Compliance and Accessibility Upgrades

The ROI of Web Accessibility

Taking Action: Protecting Your Business

Conclusion

Understanding the ADA

Do Websites Have to be Accessible?

Are You Exempt From the ADA?

Avoiding Assumptions About User Capabilities

Why Someone Might Access Your Content

Mirrors and the Visually Impaired

The Risks of ADA Non-Compliance

A Step Towards ADA Compliance

Why Federal Web Accessibility Lawsuits Are

What is ADA Title II?

What Are the New Regulations Under Title II?

Who is Affected by This New Rule?

Content Created by Third-party Contractors and Software Vendors

When Will the New Rule Take Effect?

Why Were These Regulations Made Now?

How Will the DOJ Enforce Compliance with ADA Title II?

What Are the Penalties for Non-compliance?

How State and Local Governments Can Achieve Compliance

Could These Updates Impact Private Businesses Eventually?

216digital is Here to Help

ADA Digital Accessibility at the Federal Level in the US

WCAG 2.1 AA

Websites and Mobile Apps

Compliance Timeline

State-led Legislation for Digital Accessibility

California Assembly Bill 1757

Rhode Island Bills 2023 H-5106 and S-0105

The Minnesota House Bill HF-480

Rhode Island’s Digital Accessibility and Equity Governance Board

Hawaii’s HB1419 Bill

Kansas Takes a Different Approach

The European Accessibility Act

Implications for Online Businesses

Preparing for the Future with 216digital

What is an Overlay Widget?

What Do Accessibility Overlays Claim to Offer?

Accessibility Experts Voicing Concern

What is ADA Compliance?

Why Overlays Are Not Fully Accessible

The Limitations of Accessibility Overlays

Overlays Don’t Protect Against Web Accessibility Lawsuits

Accessibility Overlays Can Make You A Target

Lawsuit Mechanics

Lawsuit Claims

Public Record Evidence

2023 Overlay Litigation Wave

Privacy Concerns

Privacy Concerns and Legal Consequences

What Actions Should Website Owners Take?

Team Up with 216digital

A Shift in Web Accessibility

A Closer Look at the Numbers

New York and Web Accessibility Lawsuits

What Industries Are Most at Risk?

Copycat Accessibility Lawsuits Are On the Rise

Why the Surge in Copycat Lawsuits?

Web Accessibility Widgets and Overlays

The Pitfalls of Web Accessibility Widgets and Overlays

How to Keep Your Online Business Safe

Conclusion

The Americans with Disabilities Act

Title III and WCAG

Background to the Wayfair’s 2023 ADA Case

Wayfair’s Web Accessibility Barriers

Common Web Accessibility Barriers

No Business is Too Small

A Step Towards Web Accessibility

Start Your Journey to ADA Compliance

What is the American with Disability Act?

Is ADA Compliance Mandatory for Websites?

Redefining the ADA

The Department of Justice and Web Accessibility