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Can ADA Web Accessibility “Testers” Sue?
As a website owner, you’ve likely heard about web accessibility and the implications of the Americans with Disabilities Act (ADA) on your digital space. Web accessibility is an integral part of the digital world, aiming to ensure that everyone, including individuals with disabilities, can access and use web content effectively.

In recent years, there has been a surge in ADA web compliance lawsuits that could impact your website and business. One key issue is the debate over whether ADA web accessibility “testers” have the legal standing to sue. This article aims to elucidate this complex issue and help you understand how it may affect your business.

The Americans with Disabilities Act and Web Accessibility

The Americans with Disabilities Act (ADA), signed into law in 1990, prohibits discrimination against individuals with disabilities in all areas of public life. However, it was initially unclear whether this act extended to websites, as they were less prevalent when the act was passed.

With the advent of the digital era, courts have gradually expanded the ADA’s scope to include websites, considering them as ‘places of public accommodation.’ This interpretation implies that websites should be accessible to individuals with disabilities, including those who have visual, auditory, or motor impairments.

In 2022, the Department of Justice (DOJ) published guidance confirming that the ADA applies to business websites. Non-compliance could expose your business to the risk of legal action, including lawsuits and fines.

The Rise of ADA Web Compliance Lawsuits

Recently, lawsuits related to ADA web compliance have become increasingly common. Many businesses, both small and large, have faced legal challenges due to the lack of accessibility of their websites. In 2023 alone, federal and state courts dealt with 4,605 lawsuits related to web accessibility.

These lawsuits argue that inaccessible websites create a discriminatory environment, depriving people with disabilities of the same opportunities afforded to those without. While many of these lawsuits are initiated by individuals with disabilities, a new group known as “testers” has emerged as a significant force.

Learn more about What You Need to Know About ADA Web Accessibility Lawsuits.

What is an ADA Web Accessibility “Tester”?

An ADA web accessibility “tester” is an individual who checks websites for ADA compliance. Their primary goal is to identify ADA violations, not necessarily to use the services or products provided on the website.

These individuals, sometimes people with disabilities themselves or professionals in accessibility consulting, are equipped with the knowledge and tools to test whether a website complies with established accessibility standards, such as the Web Content Accessibility Guidelines (WCAG).

If the tester deems the website inaccessible, they may file a lawsuit against the business. Some view this role as essential for holding companies accountable, while others see it as an opportunity for lawsuit abuse and exploitation.

What Gives Someone Ground to Sue?

Under the United States Constitution, a party must have standing to sue. ‘Standing’ is a legal term that refers to a person’s ability to demonstrate a sufficient connection to and harm from the law or action being challenged, supporting that person’s participation in the case. This requirement implies the person must allege that they attempted to access the business but were unable to or were interested in doing so but could not due to the website’s non-compliance.

In ADA lawsuits, the person suing must show that they experienced discrimination due to the website’s non-compliance. The question of standing has been a significant point of contention, especially when it comes to testers.

Can someone who has no intention of using your services or buying your products sue you because your website is not accessible?

This question brings us to a landmark case in ADA web accessibility lawsuits – Acheson Hotels, LLC v. Deborah Laufer.

Acheson Hotels, LLC v. Deborah Laufer

In late March, the case of Acheson Hotels, LLC v. Deborah Laufer became a focal point in the discussion surrounding the ADA web accessibility testers’ right to sue.

Plaintiff Deborah Laufer, a self-proclaimed “tester,” has filed over 600 lawsuits alleging ADA web accessibility violations since 2018, primarily targeting the hospitality industry.

The lower courts initially dismissed Laufer’s case against Acheson Hotels, arguing that Laufer did not intend to visit the hotel and, therefore, had not suffered any injury. However, Laufer appealed the decision, asserting that she was indeed affected by being unable to access information on the hotel’s website due to her disability. Despite acknowledging her role as a tester, Laufer argues that her motive is irrelevant.

In their brief in opposition, Laufer’s counsel referred to the text of the ADA, writing, “[…] One can readily find that a disabled person’s encounter with violations of the ADA is a real-world harm by reviewing the plain language in the findings and purposes set forth by Congress.”

The First Circuit Court of Appeals agreed and reversed the initial decision, asserting that Laufer had standing.

Supreme Court Case Takes Unexpected Turn

On March 27, 2023, the Supreme Court agreed to hear a case, but the matter took an unexpected twist. Laufer’s attorney was suspended from practicing law for defrauding hotels by lying in fee petitions and during settlement negotiations. Consequently, Laufer voluntarily dropped her lawsuit, rendering it moot. In a unanimous decision, the Supreme Court agreed.

A lawsuit can become moot when its central conflict has been resolved, as was when Laufer withdrew her claim. While the Supreme Court frequently addresses issues of standing, the Court can still address issues of mootness and the cases standing in any order it chooses.

While this particular lawsuit was declared moot, the split among the circuits regarding tester standing is still “very much alive,” and it is open to ruling on this issue in future cases.

The Future of Web Accessibility

216digital is not a law firm; we cannot provide legal advice. However, as experts in web accessibility, we understand that significant Supreme Court cases often influence the accessibility landscape. Although the Court’s ruling in Acheson Hotels, LLC v. Laufer does not alter the law, it signals the Court’s willingness to address concerns regarding the legal standing of ADA testers.

This stance may dissuade some ADA testers from initiating lawsuits, particularly against well-defended, high-profile defendants. Yet, as we’ve emphasized in previous articles, the prevalence of serious accessibility barriers is not few and far between.

With the uptick in web accessibility lawsuits each year, prioritizing web accessibility has never been more crucial. To minimize potential legal risks, online businesses must monitor their website’s accessibility and collaborate with accessibility experts to adhere to the WCAG standards.

Steps Businesses Should Take to Ensure ADA Compliance

Considering current affairs, it’s crucial that businesses ensure their websites are ADA-compliant. Here are some steps to take:
1. Audit Your Website: Conduct a thorough website audit using ADA compliance tools or hire a professional.
2. Follow WCAG Guidelines: The Web Content Accessibility Guidelines are reliable recommendations for making your website accessible. Aim for WCAG 2.1 Level AA compliance, which covers a broad range of recommendations for making web content more accessible.
3. Regularly Update Your Website: Web accessibility is not a one-time task. Regularly review and update your website to ensure ongoing compliance as guidelines and technologies evolve.
4. Train Your Team: Ensure your team understands the importance of ADA compliance. Provide them with training on maintaining accessibility during website updates and content creation.
5. Regular Monitoring: Regularly monitor your website to ensure ongoing compliance.
6. Consult with an Expert: If in doubt, consult with a web accessibility expert or lawyer specializing in ADA compliance to fully understand your legal obligations and ensure you’re doing everything necessary to comply.
Learn more about Mitigating ADA Lawsuit Risk: Affordable Solutions for Online Business.

Protect Your Online Business

ADA and web accessibility are crucial considerations for all website owners. The debate over whether ADA web accessibility “testers” can sue carries potentially significant implications. Regardless of the outcome, businesses need to strive towards full ADA compliance to avoid lawsuits and ensure a better, more inclusive user experience for all.

Find out if your website is ADA compliant today by scheduling a 15-minute complimentary website audit and consultation with our experts at 216digital. We can help determine if your website is at risk of a lawsuit and offer fast, effective ADA compliance solutions. This ensures your site is accessible to everyone, reducing your risk of litigation so you can continue focusing on what matters most: running your business.
Greg McNeil

July 10, 2023

Legal Compliance

Accessibility, ADA Compliance, ADA Lawsuit, ADA non-compliance, ADA Website Compliance, Website Accessibility
The Financial Benefits of Digital Accessibility
When we consider the landscape of digital accessibility, many business leaders and web professionals grapple with the notion of cost. The perception of digital accessibility as a high-expense venture has led to a staggering reality: a mere 3% of the internet is accessible to people with disabilities. This statistic is all the more alarming given that 1.3 billion people live with a disability.

However, it’s time to rethink this perspective and perceive digital accessibility not as a financial hurdle but as an untapped goldmine. This post aims to unravel how investing in digital accessibility can magnify your website’s traffic and lead to significant cost savings.

Buckle up as we navigate the myriad benefits that this overlooked aspect of digital strategy can bring.

Increased Website Use

A major benefit of digital accessibility is the potential for direct and indirect financial gains from increased website use. For instance, web accessibility can make it easier for people to find a website, access it, and use it successfully. As a result, you increase the site’s audience and usage.

An increase in website audience can result from the following benefits of digital accessibility:

Extended Market Reach

Web accessibility refers to the inclusive practice of removing barriers that prevent interaction with, or access to, websites by people with disabilities. But did you know that an accessible website has the potential to expand your customer base significantly?

According to the CDC, about 27% of adults in the United States live with a disability. That’s a significant part of the population, all of whom have the right to engage in the services that a business can provide.

When you prioritize digital accessibility, you’re opening your business to millions of additional potential customers who could not engage with your online content. This not only benefits potential customers but also contributes to the growth of your business with an increase in sales.

By embracing this demographic, you are bound to witness a rise in customers, clients, or consumers. The extent of this increase hinges on your ability to cater to diverse levels of abilities and the reputation your company earns through its ethical business practices.

Improved SEO

A well-known fact in the digital world is that search engines favor websites that are accessible. Search engines like Google prioritize websites that are easy to navigate, have clear content, and offer an optimal user experience—things you improve when you make your website accessible.

Google’s index is like a user with vision impairment and a billion friends. It relies on text to understand images and media content. Websites providing valid alternative text to images, audio, and videos make the site easier to find, increase its ranking, and get recommended. Many of the same principles for good SEO overlap with accessibility standards like the Web Content Accessibility Guidelines (WCAG).

When your site is accessible, it’s easier for search engines to index your content, making it more findable for users and potentially improving your organic search rankings. For instance, the radio program and podcast This American Life has an audience of around 2 million each week. By offering transcripts for each episode, they boosted their search traffic by 6.86%.

Improved User Experience

An accessible website provides a better user experience for all users, not just those with disabilities. There is a misconception in the business world that accessibility is only meant to accommodate users with disabilities, but that’s not entirely true.

According to a Forrester Research Economic Impact Study commissioned by Microsoft, 252 out of 319 companies agreed that inclusive software improved usability and customer experience. Features that make a site more accessible, such as straightforward navigation, easy-to-read text, and an intuitive layout, also make it more user-friendly.

This improved user experience can increase customer satisfaction and retention. Customers who enjoy their experience on your site are more likely to return and recommend your services to others.

Enhanced Brand Reputation

In our current economic landscape, reputation can go a long way, especially regarding how a company considers members of marginalized communities. Among these communities are people with disabilities.

Being recognized as a business that takes digital accessibility seriously can help establish a strong and positive standing in the market. However, the influence of this reputation extends beyond just customers with disabilities.

Consumers who value principles of social justice will look to your company as an example of the positive change needed in society. With the increasing emphasis on accessibility, making this conscious stride is paramount.

Direct Cost Savings

Aside from the growth in site usage and customer base, many organizations realize direct cost savings from improving Web accessibility. Let’s dive into how digital accessibility can lead to immediate cost savings for your business.

Mitigating Legal Risks

The Americans with Disabilities Act (ADA) requires businesses to make their websites accessible to people with disabilities. By ensuring your website is accessible, you could mitigate frivolous ADA lawsuits, hefty fines, and negative publicity.

In recent years, there has been a sharp increase in lawsuits related to website accessibility. For example, in 2022 alone, there were 2,387 web accessibility lawsuits filed in Federal Court and California State Court under the Unruh Act. By investing in web accessibility, you reduce the risk of such legal repercussions.

Reduced Development and Maintenance Costs

While incorporating digital accessibility into your website will take time, it will result in cleaner and more efficient code. This can make the website faster and easier to maintain in the long run, saving you money on development resources. Here’s how:
- Improved accessibility diminishes maintenance needs, resulting in lower staff costs for site maintenance.
- Accessibility lowers the need for additional server resources. Reducing the need for other server resources and their associated costs.
- Eliminates the need for creating multiple site versions as accessibility enables responsive content to work on various devices.
- Reduces future expenses to adopt new technologies as accessibility utilizes cutting-edge web technologies and readiness for future advancements.
How to Make Your Business More Accessible

Making your business more accessible isn’t a one-time activity—it’s an ongoing commitment. Here are a few steps to get you started:
1. Familiarize Yourself with WCAG: The first step toward improving web accessibility is understanding the WCAG guidelines. These guidelines provide the international standard for creating accessible web content.
2. Conduct an Accessibility Audit: Hire a professional to audit your website for accessibility, or use an online tool to get an overview of the areas that need improvement.
3. Create an Accessibility Plan: Based on your audit results, create a plan to address the accessibility gaps. This plan should be integrated into your overall website design and content strategy.
4. Educate Your Team: Everyone involved in creating your website content—from writers and designers to developers—should understand web accessibility and its importance. Regular training sessions can ensure this.
5. Regularly Test for Accessibility: Making your website accessible isn’t a one-and-done deal. Regular testing can ensure that all new content meets accessibility standards.
Remember, web accessibility is an ongoing commitment, not a one-time project. By dedicating time and resources to maintaining accessibility, you are investing in the growth of your business and ensuring a better user experience for all.

The Way Forward

Digital accessibility might seem like a high upfront cost, but the benefits far outweigh the initial investment. From expanding your market reach and enhancing your brand’s reputation to reducing development costs and mitigating legal risks, accessibility has proven financially beneficial. With the right approach and a commitment to inclusivity, your website can become a powerhouse for your business, accessible to all, and profitable in the long run. So make web accessibility a priority today and reap significant financial rewards tomorrow.

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 an ADA Strategy Briefing.
Greg McNeil

July 10, 2023

The Benefits of Web Accessibility

Accessibility, ADA Compliance, ADA non-compliance, ADA Website Compliance, Website Accessibility
Understanding Image Alt Text Descriptions
Even though digital transformation is progressing rapidly, many online businesses still lag behind in making their websites accessible to people with disabilities. This is partly due to a lack of awareness or technical knowledge of different accessibility issues and how to solve them.

In this article, we will cover one of the most common accessibility barriers — providing alternative text descriptions for images. When done correctly, alt text can paint a complete picture for people who cannot perceive images visually. Unfortunately, many content creators and developers forget to provide alt text or write something that doesn’t quite hit the mark.

So, what exactly is Image Alt Text, and how should you integrate it into your website?

What is Alt Text?

Image alt text, also called image alternative text descriptions, is the written copy that appears in place of an image on a website if the image fails to load on a user’s screen. This text can also help screen-reading tools describe images to visually impaired users and allows search engines to better crawl your website.

Alt text should be brief but vivid enough to clarify the image’s content to someone listening to the description. This includes any information contained within graphs or charts. Well-written alt text doesn’t just describe a photo but also communicates its purpose and context.

But how do you add alt text to images?

How to Add Alt Text to Your Images?

Image Alt Text is the descriptive text that is included in a website’s foundational HTML code to describe an image on a webpage.

However, adding Alt Text to images varies slightly depending on your web-building platform. Generally, when you upload a photo, there should be an ‘Alt Text’ or ‘Alt Description’ field where you can input your description.

For HTML users, you can add Alt Text to an image by including the ‘alt’ attribute within the ‘img’ tag:
```
<img src="example.jpg" alt="A description of the image">
```
Suppose you use a Content Management System (CMS) like WordPress. In that case, there’s a designated field for image optimization where you can create and change the image’s alt text.

When Should I Use Alt Text?

According to the World Wide Web Consortium (W3C), all images must have a text alternative that describes their function or the information they represent. However, that doesn’t mean every image should be treated the same.

Follow these rules when writing alt text:

1. Images of Text

Does the image contain text?

If readable text is presented within an image, the text alternative must contain every word in the image. However, it’s essential to mention images with text should be avoided, except in the case of logos.

2. Functional Images

Is the image used in a link or a button, and would it be hard to understand the function if it wasn’t there?

Suppose an image is used as a link or button. In that case, the alt text must describe the functionality and destination, if it doesn’t already from the text or graphical content. For instance, a button to “download in App Store” image link would have an alternative text description stating: “Click here to download the Bittrex app on the App Store.”

3. Informative Images

Does the image contribute meaning to the current page or context?

Informative images are images or illustrations that convey vital information to the context of information surrounding them. The text alternative for these images should include the image’s essential information. The description should be colloquial as if you are explaining it to someone sitting next to you. For example, suppose an image is of a truck driving. In that case, the alternative text should state: “A truck driving over rough terrain”.

However, complex images such as infographics or diagrams used to convey data or detailed information should have a complete text equivalent to the data or information provided in the infographic or chart.

4. Decorative Images

Is the image purely decorative or not intended for the user?

If an image’s only purpose is to add visual decoration, it does not require alt text. However, the image must then be explicitly marked as presentational so that it is ignored by screen reading software. It must still have an alt attribute, so give it “null” alt text, which is an alt attribute with no value, as seen below:
```
<img src=”../img.jpg” alt=”” />
```
Need help with how to treat a specific image? The W3C has developed an alt text decision tree to help you determine the right approach depending on the image’s purpose.

Image Alt Text Best Practices

Ultimately, image alt text needs to be specific and representative of the topic it supports. Just adding alt text isn’t enough. It’s essential to ensure it’s effective.

Here are some best practices to follow:

Describe an Image and Be Specific

Alt Text should accurately represent the content and function of an image. Use both the image’s subject and context to guide you. For example, instead of writing “dog” for an image, use a more specific description such as “A golden retriever playing fetch in the park.”

Avoid Redundancy

It might seem like a helpful cue, but remember not to include phrases like “picture of” or “image of” in your alt text. Screen readers and Search Engines will know from the preceding HTML tag to announce the alt text as an image. Including these phrases in your description will only disrupt the user’s experience and waste valuable characters.

Write for People, Not Search Engines

Many content creators make the mistake of trying to stuff keywords into their site’s alt text. While it’s true that alt text can contribute to SEO, your priority should be accessibility and user experience. If you can naturally fold a keyword into your alt text, excellent. But don’t fall into the trap of treating alt text like an SEO tool.

Review for Spelling Errors and Punctuation

Like all website content, proper punctuation makes information easier to understand. Ensure that your alt text is free of mistakes for a professional and clear description.

In addition, when hiding decorative images, you should be aware of spacing when using a null or empty alt text. If there is a space between the quotes, assistive technologies may still pick it up as alt text, confusing the user.

Image Alt Text Example

Alt text that doesn’t appropriately describe the image and its purpose could prove detrimental or puzzling to website users relying on assistive technology.

Follow alt-text best practices, and you’ll get a feel for what needs to be said. A more detailed description may be beneficial. However, there are instances when it can be redundant. Consider the example below.

Bad Alt Text
```
<img src= "example.jpg" alt="a city's bridge at night">
```
The line of alt text above is technically descriptive — but it does not describe the image in a meaningful way for the user. Yes, the photo above shows a city’s bridge, and it is night. But this is also a picture of Cleveland, Ohio — and the Detroit-Superior Bridge. These are essential specifics that your users might need to comprehend the image if it’s on, say, a blog post about Cleveland landmarks.

Good Alt Text

With context in mind, a better alt text for this image might be:
```
<img src= "example.jpg" alt="Cleveland Ohio's Detroit-Superior Bridge at night">
```
Why is Image Alt Text Important?

We’ve already alluded to several reasons why image alt text is essential. However, understanding these reasons will help you write the best alt text possible for your users. Below we’ll look at the significant reasons image alt text is essential.

Web Accessibility and User Experience

Image alt tags allow screen reader users to understand what is happening on a webpage besides the written basic text. Images may be the only form of instruction for some websites or other digital assets. Without alt text, these users may miss out on the information conveyed through images, affecting their overall site experience. It is, therefore, a key component in meeting the World Wide Web Consortium (WCAG) success criteria for image alternative text descriptions.

Ignoring these standards could lead to potential legal consequences due to non-compliance with the Americans with Disabilities Act (ADA). Such non-compliance limits your website’s audience reach and could result in lawsuits or hefty fines. Hence, incorporating alt text in your website design is an inclusive practice and a legal imperative.

Search Engine Optimization

Search engines like Google, unable to visually understand images, rely on Alt Text to determine their content. This information helps them provide relevant results for image searches, significantly boosting your website’s visibility.

However, while Alt Text can contribute to SEO, it should not be used to manipulate search rankings by overstuffing keywords. Google can penalize such practices, leading to a decrease in your overall SEO performance.

Learn more about Web Accessibility and SEO Optimization: A Powerhouse Combination.

Take the Next Steps Toward Accessibility

In a digital era where inclusivity and accessibility are of utmost importance, alt text is a vital tool for website owners and developers. If, until now, you were not aware of the importance of image alt text, don’t stress! You can add these elements at any time to increase the accessibility of your website.

If you’d like to talk further about your web accessibility initiative, Schedule a Complimentary ADA Strategy Briefing with the experts at 216digital. We will help you take the steps towards web accessibility on your terms by developing a strategy to integrate WCAG 2.1 compliance into your development roadmap.

Remember, alt text is not just an option—it’s an essential step in building a successful and accessible online presence.
Greg McNeil

July 10, 2023

How-to Guides

Accessibility, ADA Compliance, ADA non-compliance, ADA Website Compliance, Alt text, Image Alt Text, Website Accessibility, Website Accessibility Tools
Understanding WCAG for Better Digital Compliance
The World Wide Web is an interconnected network of knowledge accessible to anyone with an internet connection. However, the term ‘anyone’ isn’t always accurate. Some individuals, particularly those with disabilities, may find it challenging to access information and services online.

Fortunately, the Web Content Accessibility Guidelines (WCAG) are here to change this. WCAG can help websites follow the best practices of accessible design and eliminate accessibility barriers that could expose your business to the risk of legal action.

But what is WCAG — and how does it apply to your online business? In this post, we answer these questions and provide a few tips for making your web content WCAG-compliant.

The World Wide Web Consortium

The World Wide Web Consortium (W3C) is an international organization committed to improving the web. In 1997, the W3C launched the Web Accessibility Initiative (WAI) with the goal of providing strategies, guidelines, and resources to make the web accessible to people with disabilities. This initiative includes technical specifications for HTML, CSS, XML, and other technologies used to build websites.

Out of the WAI was born the Web Content Accessibility Guidelines or WCAG.

What is WCAG?

The Web Content Accessibility Guidelines, commonly known as WCAG, are a set of recommendations designed to make web content more accessible, primarily for people with disabilities. However, following these guidelines can also make your web content more accessible to all users, regardless of the device they’re using or their internet access circumstances.

The initial version of WCAG, WCAG 1.0, was released in 1999 with 14 guidelines. Since then, it has undergone significant revisions to better address the needs of various users and keep pace with rapidly evolving technologies. The most recent version at the time of this writing, WCAG 2.1, was published in 2021. However, the WAI plans to introduce WCAG 2.2 in the fall of 2023. Learn more about WCAG 2.2 and the future of accessibility standards.

WCAG Structure

WCAG is organized around four fundamental principles, which state that all content must be Perceivable, Operable, Understandable, and Robust (POUR). These four principles are expanded upon by supporting guidelines and further divided into distinct Success Criteria. These Success Criteria serve as precise and verifiable requirements for accessibility.

An Example of WCAG Success Criteria

Success Criterion 1.1.1 Non-text Content states: “All non-text content presented to the user has a text alternative that serves the equivalent purpose, except for the situations listed below…”

This Success Criterion is one of the Success Criteria under Guideline 1.1 Text Alternatives: “Provide text alternatives for any non-text content so that it can be changed into other forms people need, such as large print, braille, speech, symbols, or simpler language.”

This Guideline is one of the Guidelines under Principle 1. Perceivable: “Information and user interface components must be presentable to users in ways they can perceive.”

WCAG Conformance Levels

WCAG success criteria are organized into three levels of conformance: Level A, Level AA, and Level AAA. Each Success Criterion is assigned a conformance level of A, AA, or AAA, with each Level including all success criteria from the lower levels.

For instance, Level AA includes all Level A success criteria, while Level AAA includes both Level A and AA success criteria. To qualify as meeting a certain conformance level, all content on a website must fully meet at least that Level.

While Level A conformance makes a website accessible, Level AA conformance of WCAG 2.0 or 2.1 is the most common. Websites that meet the Level AA requirements of the current version of WCAG are generally considered reasonably accessible to most users with disabilities.

Achieving Level AA conformance means satisfying all Level A and AA Success Criteria. However, it’s important to note that meeting Level AAA is optional as it’s impossible for some content to meet all Level AAA Success Criteria.

Understanding How WAI Maintains and Updates WCAG

The WAI regularly updates the WCAG to keep up with advancements in technology and user needs, ensuring the guidelines remain relevant and effective.

The WAI organizes this process through milestones, which are as follows:
1. Working Draft: The WAI team publishes the document as a Working Draft to ask for review and input from the community. The team updates the draft based on feedback. Usually, multiple Working Drafts of a technical report are published.
2. Wide Review Working Draft: Once all the comments and technical requirements have been addressed, it provides the complete document for community review. At this stage, members of the public are invited to leave comments.
3. Candidate Recommendations: The main purpose of the Candidate Recommendation is to ensure that the technical report can be implemented. At this stage, developers are encouraged to use the new version of WCAG in their projects.
4. Proposed Recommendation: After implementing each feature of the technical report, the W3C announces it as a Proposed Recommendation for W3C membership endorsement
5. W3C Recommendation: Once there is significant support for a new version of WCAG from the W3C Members, the W3C Director, and the public, it becomes an official W3C Recommendation.
It’s important to understand that WCAG is a living document, consistently updated to meet changing technology and digital accessibility needs. Hence, reaching each milestone takes time. WCAG needs to apply to different types of digital content and be reasonably future-proof.

But which version of WCAG should you use to test your content?

Which Version of WCAG Should I Use To Test My Content?

WCAG offers businesses a straightforward way to test their web content for accessibility issues. Each version of WCAG is designed for backward compatibility, including all previous guidelines and adding new ones. While recent versions of WCAG extend the requirements of older versions, the old standards still apply.

But which version of WCAG should you use for testing? When deciding which version of WCAG to use for testing your content, it’s generally recommended to use the latest version. Using the most recent version will ensure your website complies with the Americans with Disabilities Act (ADA) and other nondiscrimination laws, mitigating the risk of frivolous ADA lawsuits.

Is WCAG a Legal Requirement?

While WCAG is not legally binding in every country, many governments require compliance with its guidelines to ensure digital accessibility. For instance, in the US, federal websites must meet WCAG 2.1 Level A and AA requirements under Section 508 of the Rehabilitation Act.

Similarly, Title III of the ADA applies to private businesses but doesn’t explicitly mention WCAG or provide technical standards for online content. However, the Department of Justice (DOJ) published guidance in 2022 confirming its position that the ADA applies to business 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)

The Rise of ADA Web Compliance Lawsuits

Failure to meet these standards can expose businesses to legal challenges, as was the case with Domino’s Pizza in 2019. More recently, there has been a sharp increase in lawsuits related to website accessibility. For example, in 2022 alone, there were 2,387 web accessibility lawsuits filed in Federal Court and California State Court under the Unruh Act. This number doesn’t include the rising number of ADA legal complaints and ADA compliance demand letters sent to businesses with non-accessible websites.

While WCAG conformance might not be legally required elsewhere, it’s still considered a best practice and can significantly improve the user experience for all visitors.

Understanding What Conformance Means

WCAG conformance means that your website meets the criteria set by the WCAG guidelines. This involves more than just ticking off a list of guidelines; it means ensuring your website is accessible and usable for people with various disabilities.

W3C’s Understanding Conformance explains: “Conformance to a standard means that you meet or satisfy the ‘requirements’ of the standard.”

There are five requirements for conformance, per W3C:
1. Conformance Level: Websites must fully meet Level A, AA, or AAA levels.
2. Full Pages: Conformance and conformance levels account for the entire website or web page. It does not exclude a part of the website or a web page or evaluate each page individually.
3. Complete Process: If a web page is part of a multi-page process where a sequence of steps must be completed to accomplish an activity, all web pages must conform at the specified Level or better. Conformance can only be achieved if all pages in the sequence of steps conform at that Level or better.
4. Only Accessibility-Supported Ways of Using Technologies: Accessibility-supported technologies must be used to satisfy the success criteria. Any information or functionality not supported must also be available in a way that is accessibility supported.
5. Non-interference: If technologies are used in a way that is not accessibility supported, or if they are used in a non-conforming way, they must not prevent users from accessing the rest of the page. Additional requirements may also apply.
For more information, review W3C’s Understanding Conformance.

Building a Strategy for WCAG Conformance

Every online business should commit to web accessibility. Thankfully, WCAG makes this process more manageable. By planning to test your content against WCAG Level AA, you can find and address barriers affecting your users.

At 216digital, we’re dedicated to helping businesses achieve WCAG conformance. We can help develop a strategy to integrate WCAG 2.1 compliance into your development roadmap on your terms so you can focus on your other tasks.

Would you like to know where your business stands today? Schedule a complimentary ADA Strategy Briefing with 216digital to get a free scan of any URL and uncover accessibility issues on your site.
Greg McNeil

July 10, 2023

WCAG Compliance

Accessibility, ADA Compliance, ADA non-compliance, ADA Website Compliance, WCAG, Website Accessibility
AI for ADA Web Remediation: Is It the Right Choice?

The web, a vast and sprawling network of information, has become a fundamental part of our lives. From education to work, communication to commerce, it shapes how we interact and learn. However, it’s not always as accessible as it should be for everyone. Web accessibility is a pivotal matter that guarantees everyone, including people with disabilities, can perceive, understand, navigate, and interact with the web. But what role does powerful artificial intelligence (AI), like Accessibe, UserWay, and ChatGPT, play in this realm? And, is it suitable for web remediation?

What is AI?

Artificial Intelligence (AI) is a field of computer science that aims to create systems capable of performing tasks that usually require human intelligence. This includes learning, understanding language, recognizing patterns, solving problems, and making decisions.

AI uses various techniques, most commonly machine learning (ML), where machines are programmed to learn and improve from experience. ChatGPT is, of course, a famous example.

ChatGPT

ChatGPT is a state-of-the-art AI language model developed by OpenAI. It leverages machine learning to understand and generate human-like text based on the inputs it receives. ChatGPT and similar machine learning models have vast potential in their applications. Its applications include coding, composing music, writing emails or essays, and playing complex games like Chess.

While some worry that the mass adoption of AI might take away jobs or make it easier for people to cheat or plagiarize, it has made others question if AI could help with ADA web remediation. While AI has shown tremendous potential in various fields, there are reasons why it may not be the best solution for ADA web remediation.

AI and Machine Learning in Web Remediation

AI and machine learning shows great promise in various fields, including web accessibility. Common AI web accessibility solutions include tools like Accessibe, UserWay, and AudioEye. However, even the most sophisticated AI, like ChatGPT, has limitations. Let’s explore how AI and ML can be applied to web accessibility.

AI Testing for ADA Web Compliance

AI systems can be trained to recognize certain patterns, enabling them to evaluate websites against Web Content Accessibility Guidelines (WCAG) criteria. However, this method is not foolproof.

Many WCAG requirements, such as ensuring content makes sense when read out of context or assessing whether a site is easy to navigate, require a nuanced understanding of human interaction that AI currently lacks. In fact, AI can only identify 30% of WCAG 2.1 A and AA success criteria.

David O’Neill, a well-known figure in accessibility and technology, says, “[AI] can identify accessibility issues, but it cannot replace a human being in terms of applying the necessary context or making the relevant decisions.”

AI Remediating Accessibility Issues

When it comes to fixing accessibility issues, AI may fall short. AI can automate some remediation tasks, like adjusting elements on a webpage, such as text size, color contrast, or page navigation. However, this automatic correction can also introduce new accessibility issues. AI algorithms can misinterpret complex web page elements, leading to flawed solutions that don’t fully address accessibility needs or might cause more barriers.

AI Creating Alternative Text Descriptions

AI has made significant strides in image recognition, leading to the idea that it could be used to generate alternative text descriptions for images. However, though AI can identify the objects in a photo, it still struggles to provide meaningful context. For example, an AI might recognize and describe an image as “a person standing in a room,” but a human could provide more context, like “John, laughing while decorating the Christmas tree.”

Predicting and Prioritizing Accessibility Issues

AI and ML algorithms can predict common accessibility issues based on patterns from past data. However, predicting is one thing; prioritizing and rectifying these issues is the real challenge. AI lacks contextual understanding, which is often vital in prioritizing and addressing barriers. For instance, AI might deprioritize fixing small font sizes based on frequency. Still, for an elderly user or someone with visual impairments, this is a critical issue.

So, at a glance, AI offers some promising solutions. But should we entirely trust AI for web remediation?

Limitations of AI for ADA Remediation

While AI and ML have made strides in web accessibility, it is clear they can’t replace the expertise and experience of a web accessibility agency.

AI can certainly help identify some common accessibility issues. But to thoroughly evaluate the accessibility of a website and remediate potential problems, you need a detailed understanding of how people with disabilities interact with digital content. This level of insight requires human empathy, contextual understanding, and years of experience, something AI currently lacks.

AI cannot comprehend the intent of a web page or the nuance behind the design. It can’t understand the user journey in the same way that a professional with experience in web accessibility can.

Manual Auditing: The Gold Standard

While automating the process might be tempting, manual auditing remains the gold standard for ADA web remediation.

A manual audit offers depth and understanding that AI currently cannot match. With a comprehensive understanding of user experience from various perspectives, human auditors can identify barriers to accessibility that AI might miss. This is because professional auditors are experienced in recognizing how individuals with disabilities navigate and interact with web content.

By leveraging the expertise of professionals, you can ensure that every aspect of your website meets WCAG standards. They can understand the unique context and nuances of your website, something which even the most advanced AI, like ChatGPT, cannot fully emulate.

Partner with 216digital for ADA Web Remediation

When it comes to ADA web remediation, consulting professional web accessibility agencies like 216digital provides a distinct advantage. Our team of experts understands the intricacies of web accessibility and how to make your website more accessible and compliant with ADA and WCAG guidelines.

Unlike AI, 216digital offers customized strategies based on a comprehensive understanding of your website and its users. We don’t just look for issues; we also devise the best ways to remediate them in light of your site’s purpose and design.

As David O’Neill points out, “There is a role for automation in accessibility… [But] there is also a clear need for manual testing.” At 216digital, we combine the best of both worlds, using technology to aid in identifying issues while relying on our human expertise for effective remediation.

For comprehensive ADA web remediation, trust the experts at 216digital. Schedule a complimentary ADA Strategy Briefing today.

Greg McNeil

June 15, 2023

Testing & Remediation

Accessibility, ADA Compliance, ADA non-compliance, ADA Website Compliance, Website Accessibility, Website Accessibility Tools
What is Manual Testing and Remediation?
Are you a website owner striving to make your site more accessible? If so, you’re already ahead of the curve, recognizing the critical role of web accessibility in our digital age. So far, you might have relied on automated tools for testing web accessibility. While these are useful, they have limitations. That’s where manual testing and remediation come into play.

But what is manual testing? If you’ve heard of the term but aren’t quite sure what it means, don’t worry! We’ve got you covered. This article will give you an in-depth understanding of manual audits and how to use them to make your site more inclusive. Let’s dive in!

The Current Limits of Automation

Automated tools have made testing websites for accessibility issues a breeze, detecting common problems quickly and efficiently. However, they can’t replicate the intuition, judgment, and understanding of real human users. While automated tools can detect clear-cut technical issues, they miss out on nuances only a trained professional can spot.

In fact, 70% of accessibility issues require a human review to correctly interpret standards and navigate gray areas outside automation’s grasp. The limited scope of even the most advanced automation will leave many compliance issues unresolved and your company at risk for a frivolous ADA lawsuit. That’s because web accessibility isn’t just about ticking boxes or passing tests; it’s about creating an enjoyable user experience for everyone. And this is where manual testing excels.

What is Manual Testing and Remediation?

Manual testing and remediation is a hands-on approach to web accessibility. Accessibility experts will navigate through your site, examining each element to ensure it meets the Web Content Accessibility Guidelines (WCAG).

It’s a meticulous process that requires experts to use a variety of browsers and assistive technologies, such as screen readers or voice recognition software, to help diagnose subtle hindrances to accessibility. This thorough testing method often helps to find accessibility issues caused by code that technically conforms to WCAG. However, these issues will cause unexpected problems for some or all users with disabilities.

Once the manual audit is complete, the experts will deliver a report providing recommendations for remediation. A developer will then use that report to analyze and fix the site’s source code.

Why Choose Manual Testing?

It’s the human touch! Computers are great for many things, but they can’t replicate the intuition, judgment, and understanding of real human users. While automated tools can detect clear-cut technical issues, they miss out on nuances only a trained professional can spot. Some of these include:

Functionality

Imagine trying to navigate your site without a mouse. Sounds challenging, right? Yet, this is a reality for many users. Some people may use only a keyboard or switch devices to navigate the web due to physical impairments or personal preference.

Manual audits involve navigating your website using only a keyboard to ensure that all interactive content and functionalities are reachable and usable. Basic keyboard controls include the Tab and arrow keys to navigate through links, buttons, and form fields and Enter to select. Your site should allow users to skip to main content areas or navigation menus with keyboard shortcuts to prevent ‘Tab fatigue.’

While automated audits can detect some critical features for functionality, they are not able to test for the following:
- Contains focus outlines, highlighting focused elements such as form fields or button
- Navigating header menus and links
- Navigating through one and or multiple pages
- Keyboard traps (Users are unable to move away from a selected element)
Screen Reader Compatibility

Screen readers are assistive tools that convert on-screen text into spoken words or braille output. Low-vision users most commonly utilize this tool, and it can be challenging to replicate through automated testing.

During manual testing, however, professionals can use screen readers to navigate the website to ensure that all visual information is read aloud accurately, allowing low-vision users to interact effectively with all elements. This includes images, links, form fields, buttons, and more.

For example, if you have an image on your site, that’s essential for understanding the content. Automated tools might recognize the existence of the image and its associated text description. Still, they won’t be able to judge if the alt text accurately represents the image’s content.

Content Review

The content of your website is its bread and butter. Without your content functioning as intended, you could leave your users scratching their heads.

While it’s not difficult for an automated scanner to detect if pages have missing content, such as alt text or page header, it can’t notice if they are used in the correct context or if it makes sense for the user. Utilizing a manual audit will ensure that content is readable and makes sense not just for the user but for search engines, which can directly lead to more business opportunities for a company.

A content review includes ensuring text is clear and readable, images have alternative text descriptions (also known as ‘alt text’), and information is presented logically and in understandable order.

When a Manual Audit is Needed

A manual audit must be conducted on a website instead of just an automated scan. Automated audits can’t account for the nuances of human consciousness, and it’s essential that all users have the same experience regardless of their disability. For people with disabilities, navigating online is a personalized and delicate process, as should the auditing process.

Facing an ADA Web Accessibility Lawsuit

Under more severe circumstances, if you’re facing a lawsuit, you must fix any issues cited in the complaint. The biggest problem with these complaints is that they’re vague, and this is usually done on purpose for two reasons:
- Easier to justify the lawsuit
- Allows enough wiggle room to allow plaintiffs to file a copycat lawsuit or sue again for a different issue, claiming that the problems were never fixed.
So getting a manual audit and taking your website through some digital remediation is significantly less than the cost of a lawsuit because not only do you have to pay for the suit, but you’ll also be paying legal fees and your chances of actually getting out of a lawsuit are slim to none as 95% of them are settled outside court.

What Components Make A Good Manual Audit?

All audits are not created equal, but a good audit report will be very detailed and thorough. It starts with the scope of the audit in conjunction with the detail and clarity in which it is conveyed to you and your web developer.

Your audit serves as a blueprint that needs to be followed step-by-step to fix the problems on your website and make it accessible. So having a report that is too broad can cause you to miss important details or, if they’re too vague, you could still be missing vital information.

In every report that we conduct at 216digital, we include the steps needed to recreate non-compliant issues, including:
1. A detailed list of issues: The report will specify what WCAG criteria were violated, their location on your website, screenshots and code snippets for clarity, and how severe they are.
2. Recommendations for remediation: The report will offer practical solutions to remediate issues, the urgency to fix them, and the link to exact WCAG guidelines
3. Compliance level: It should indicate how compliant your website is with established accessibility standards, like the WCAG.
4. User-focused insights: It should include feedback from users with disabilities, offering a real-world perspective on how accessible your website is.
5. Ongoing Web Accessibility: Suggest tools or practices for maintaining accessibility in the future.
We use an Excel Spreadsheet with multiple tabs detailing these issues comprehensively to ensure that you or a developer can clearly understand the problems and methodically go through the audit to implement the required changes.

What You Should Look for in an Accessibility Partner

When choosing an accessibility partner, you should first look for expertise and experience. Website accessibility is both a confusing and highly litigious process that requires experts to guide clients through and resolve these problems.

A good measurement of whether you have a qualified accessibility partner is by asking:
- How many audits have they done?
- What are the professional credentials?
- How many years have they been in business?
- What is their process to find non-compliant issues?
- Do they offer remediation services or guidance for identified issues?
- Do they provide aftercare training or tools to maintain accessibility in the future?
Every website is different, so having professionals that are thorough and will check every non-compliant finding is critical.

Bring Your Site to a New Level of Accessibility

Enhancing your website’s accessibility is an ongoing process. While automation is an excellent starting point, manual testing, and remediation are indispensable for comprehensive web accessibility. By going beyond the capabilities of automated tools, you’ll create a site that meets legal requirements and a platform that truly resonates with your entire audience, opening doors to even greater user engagement and broader markets. So, make the move and bring your site to a new level of accessibility today with 216digital!

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 an ADA Strategy Briefing.
Greg McNeil

June 15, 2023

Testing & Remediation

Accessibility, ADA Compliance, ADA non-compliance, ADA Website Compliance, manual audit, Manual Testing, Website Accessibility
A Comprehensive Guide to ADA Web Compliance
As a business owner, you are likely aware that the Americans with Disabilities Act (ADA) is a federal law mandating inclusion for people with disabilities in all areas of public life. Did you know, however, that these protections also extend to websites? The number of website accessibility lawsuits has steadily risen — from 2,314 in 2018 to 4,061 in 2022.

But don’t worry. We’ve got you covered! In this guide, we’ll take a look at what you need to know as an online business owner about the ADA and its implications for your website, including:
What is the ADA?

The ADA, or the Americans with Disabilities Act, is a federal law that prohibits discrimination against people with disabilities in all areas of public life. The primary goal of this law is to ensure that people with disabilities have the same rights and opportunities as everyone else.

The ADA draws on the precedent set by Section 504 of the Rehabilitation Act, which guarantees certain rights to people with disabilities. However, the Rehabilitation Act was very limiting, only applying to the government sector (later amended and updated by Section 508).

What Does the ADA Cover?

ADA is a very broad piece of legislation that is divided into five titles. The part of the ADA that affects the way that businesses serve customers and employees is called “Title III.”

Title III of the ADA, which affects how businesses serve customers and employees, prohibits discrimination in “places of public accommodation.” These “public accommodations” refer to privately owned entities such as restaurants, schools, recreation facilities, and retail stores.

The ADA necessitates two main things:
1. Employers must provide necessary accommodations for employees with disabilities to perform their job duties, which may involve accessible restrooms and appropriate office equipment.
2. Businesses must ensure that their services are accessible to customers with disabilities. This requires features such as wheelchair ramps for building entrances, American Sign Language (ASL) interpretations, and accommodations for service animals.
Who Has To Be ADA Compliant?

There’s a common misconception that ADA only applies to large corporations or physical brick-and-mortar stores. Any business with 15 or more employees or any that operates publicly must comply with the ADA. However, this rule does not apply to websites—businesses of all sizes may be served with ADA non-compliance litigation.

That means that ADA affects:
- Places of entertainment such as theaters and concert halls
- Restaurants
- Retail stores
- Doctors’ offices
- State and local government offices, employment agencies, and labor unions
- Schools and daycare facilities
Is ADA Compliance Mandatory for Websites?

While it was clear from the beginning that the ADA would affect brick-and-mortar stores, it was less obvious if it would cover websites and online applications. As the internet and websites started to play a bigger role in how consumers interact with businesses, the way the ADA is applied to web accessibility had to change.

In 2010, the Department of Justice (DOJ) began rulemaking activity to assert that all business websites are “places of public accommodation” under Title III of the ADA. The final Notice of Proposed Rulemaking, however, has been postponed by the DOJ multiple times.

It wasn’t until late 2021 and early 2022 that the DOJ entered into multiple settlement agreements concerning the accessibility of websites used for COVID-19 vaccines. These emphasized that the DOJ “…has consistently maintained that the ADA’s requirements apply to all goods, services, privileges, or activities offered by public accommodations, including those offered on the web.”

Today, US courts apply ADA accessibility requirements to all online domains, including websites and other web-based applications. Consequently, businesses should strive to comply with ADA rules.

How Does the ADA Assess Web Accessibility?

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), developed by the World Wide Web Consortium (W3C), as the standard for ADA web compliance.

WCAG 2.1 Level AA has become the benchmark for ADA web compliance, even referenced in many joint lawsuits with the DOJ. However, it is important to note that there is no legal standard— even achieving WCAG 2.1 AA conformance does not fully protect you from lawsuits.

WCAG 2.1 consists of 78 success criteria written as pass-or-fail statements that address common accessibility issues, such as miss or non-descriptive alternative text and keyboard navigation.

The Rise of ADA Web Compliance Lawsuits

An ADA web accessibility lawsuit can be filed by anyone who feels they have been discriminated against due to a website’s inaccessibility.

The ADA’s relevance to websites and online applications is more than just theoretical. Since 2017, ADA Title III related lawsuits have skyrocketed, with 2,314 lawsuits filed in 2018 and over 4,061 cases in 2022. Overall, web accessibility lawsuits have increased by 175% over the past five years. Furthermore, these figures don’t include the rising number of ADA legal complaints and ADA compliance demand letters sent to businesses with non-accessible websites.

In 2022, 1,500 demand letters were sent per week. This represents a steep incline in legal actions pursued following the notice of non-accessible websites on the internet.

As an online business or website owner, it’s critical to ensure your website is accessible to everyone, regardless of their disability. Doing so not only helps avoid legal action but also broadens your audience.

What Are the Most Common Accessibility Issues Cited In Legal Claims?

Most ADA website compliance lawsuits center around a few recurring issues, including:
1. Missing Image Descriptions or Alt Text: Images should have descriptive alt text that provides context or meaning for those who can’t see them.
2. Empty Links and Buttons: All links and buttons should have descriptive labels or text to inform users about their purpose.
3. Info and Content Structure: Information should be organized logically, and the content structure should be easily navigable by assistive technologies.
Why You Need to Take ADA Web Compliance Lawsuits Seriously

Web accessibility cases against large companies like Domino’s, Netflix, and H&R Block made headlines. However, most lawsuits are against small to medium-sized businesses. In 2022, 72% of ADA non-compliance lawsuits involved companies with less than $50 million in annual revenue.

These lawsuits can lead to stiff penalties. For example, businesses that violate Title III of the ADA may face a maximum civil penalty of $75,000 for a first violation. Subsequent violations have been seen with up to a $150,000 fine. Since the court would inevitably favor the plaintiff, small business owners often feel they have no choice but to settle out of court. But even the average ADA website lawsuit settlement still comes to $35,000.

The implications are clear: a non-accessible website is a significant liability for any company operating on the web today.

Find Out If Your Website is ADA Compliant

As a website owner, you must ensure your site is accessible to all, including those with disabilities. Understanding ADA Title III is a crucial step toward achieving this goal. Although the process may seem daunting, it’s a worthy investment that helps you avoid legal complications and improves your website’s usability and reach. So, why not start reviewing your website’s accessibility today?

Find out if your website is ADA compliant today by scheduling a 15-minute complimentary website audit and consultation with our experts at 216digital. We can help determine if your website is at risk of a lawsuit and offer fast, effective ADA compliance solutions. This ensures your site is accessible to everyone, reducing your risk of litigation so you can continue focusing on what matters most: running your business.
Greg McNeil

June 15, 2023

Legal Compliance

Accessibility, ADA Compliance, ADA non-compliance, ADA Website Compliance, Website Accessibility, Website Accessibility Tools
Mitigating ADA Lawsuit Risk: Affordable Solutions for Online Businesses
Are you worried about your ADA compliance as an online business owner or website manager? If so, you may be aware that many companies have faced lawsuits due to non-compliance with the Americans with Disabilities Act (ADA). These guidelines protect people with disabilities and provide barrier-free access to web content. Failing to comply with these guidelines could lead to costly legal battles. However, achieving full ADA compliance might appear daunting and costly.

The good news is that there are several steps you can take to mitigate the risk of an ADA lawsuit without breaking the bank. In this blog, we will discuss practical and budget-friendly solutions to enhance your website’s accessibility.

The Americans with Disabilities Act

The Americans with Disabilities Act is a civil law that protects the rights of people with disabilities in all areas of public life. While the ADA does not explicitly mention online content, the courts have clarified that the law does apply to websites, specifically Title III. Title III of the ADA prohibits the discrimination of those with disabilities in places of public accommodation.

In fact, in 2010, the Department of Justice (DOJ) stated that websites are public places subject to the ADA’s requirements. Unfortunately, this ruling has exposed millions of online businesses to the risk of a frivolous ADA lawsuit.

What is an ADA Web Accessibility Lawsuit?

An ADA Web Accessibility Lawsuit can be filed by anyone who feels that they have been discriminated against due to the inaccessibility of a website. The consequences of such a lawsuit can be severe, including hefty fines, legal fees, and damage to the business’s reputation.

In recent years, there has been an increase in lawsuits filed against website owners for failing to comply with ADA. In 2022, 2,387 web accessibility lawsuits were filed in Federal and California State Courts under the Unruh Act. However, 97% of demand letters are settled and never evolve into a case. This means plaintiffs sent more than 1,500 demand letters per week in 2022.

As an online business or website owner, it is essential to ensure your website is accessible to everyone, regardless of their disability. By doing so, you can not only avoid legal action but also open yourself up to a wider audience and improve the overall user experience for your customers.

How to Mitigate the Risk of a Website Accessibility Lawsuit

The best way to avoid an ADA lawsuit is to ensure your website is accessible to all users, including those with disabilities. You may not have the time or money to make your site fully compliant, but fear not! There are steps you can take to make your website more accessible:

Conduct a Self-Evaluation

The first step is understanding your website’s current level of accessibility. Conduct a self-evaluation of your website to identify areas where it may not comply with the ADA. This can involve using automated testing tools or manual testing with assistive technologies such as screen readers.

Many free tools are available online to help with this process, such as WAVE (Web Accessibility Evaluation Tool) and Google Lighthouse. These tools will generate reports highlighting areas of your website that need improvement, making it easier to prioritize the most critical issues.

Prioritize High-Impact Issues

Not all accessibility issues carry equal weight. To make the most of your limited time and resources, focus on the high-impact issues that will benefit the most users. These may include:
- Ensuring your website is keyboard-accessible
- Providing alternative text descriptions for images
- Offering clear and concise labels for forms and buttons
- Navigational menus and links
Addressing these areas will significantly improve the user experience for those with disabilities, reducing the likelihood of complaints and lawsuits.

Develop a Plan

Now that you’ve identified and prioritized your website’s accessibility barriers, develop a plan to address them. Break your plan into manageable steps, set realistic deadlines, and allocate resources accordingly. While it might not be possible to address all issues immediately, demonstrating a commitment to improving accessibility can help mitigate legal risks.

Add an Accessibility Statement and Contact Information

Include an accessibility statement to demonstrate your commitment to web accessibility. This can be an essential part of your defense in an ADA lawsuit. Your statement should include information about your commitment to accessibility, steps taken to improve accessibility, and how users can report issues or request accommodations.

Make sure your contact information is easily accessible on your website, allowing users with disabilities to reach out to you with concerns or suggestions.

Be Responsive to Complaints

Addressing accessibility complaints promptly and effectively can demonstrate your commitment to making your website more accessible. If a user reports an issue, take the time to understand their concerns and work to resolve the problem as quickly as possible. In addition, documenting your responsiveness to complaints can be invaluable in case of a legal challenge.

Keep an Eye on Updates

Web accessibility standards and best practices are constantly evolving. Stay informed about updates to the Web Content Accessibility Guidelines (WCAG) and other relevant resources, such as the ADA‘s website. Regularly reevaluate your website to ensure that it remains compliant with current standards.

Get an ADA Lawsuit Risk Audit

Finally, consider investing in a professional ADA lawsuit risk audit. While it may be an additional expense, a professional audit can provide valuable insights into your website’s accessibility status and potential legal risks. An audit can help identify areas that need improvement and provide guidance on how to address them.

Prevent an ADA Website Lawsuit

Achieving full ADA compliance can be challenging, especially for small businesses with limited time and resources. However, it’s essential to keep in mind that, even if you take these steps, it is still possible to be sued for having a website that is not fully compliant with the ADA. But, by taking these steps, you can demonstrate that you are taking the matter seriously and making a good-faith effort to comply with the law. Remember, the key is to be proactive, prioritize high-impact issues, and demonstrate a commitment to accessibility. By doing so, you’ll protect your business from legal exposure and create a more inclusive online experience for all users.

216digital Specializes in Web Accessibility

If you would like to learn more about your risk of an ADA lawsuit and the steps you can take to protect your website against frivolous ADA lawsuits, schedule a complementary ADA Strategy Briefing with 216digital.

216digital’s can let you know whether your website is at risk of an ADA lawsuit and provide professional services dedicated to ensuring your website stays off of the radar of predatory law firms so you can continue focusing on what matters most, running your business.
Greg McNeil

April 28, 2023

Legal Compliance

Accessibility, ADA Compliance, ADA Lawsuit, ADA non-compliance, ADA Web Accessibility, ADA Website Compliance, Website Accessibility
Making the Internet Accessible – The History of Website ADA Compliance

ADA website compliance!

It’s become a popular topic as of late, especially for business owners that have a website.

But, it might surprise you to learn that ADA compliance has been around for quite some time. Its current popularity is a direct result of its evolving legal interpretations for what makes a website accessible.

Below, we’ve plotted the history of Website ADA Compliance and its role in preventing discrimination online.

(more…)

Greg McNeil

July 23, 2020

Legal Compliance

ADA Compliance, ADA Lawsuit, ADA non-compliance, ADA Website Compliance
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.
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.

Request A Free ADA Compliance Scan

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.
Greg McNeil

May 20, 2020

Legal Compliance

ADA Compliance, ADA Lawsuit, ADA non-compliance, Website Accessibility, Website Accessibility Tools

The Americans with Disabilities Act and Web Accessibility

The Rise of ADA Web Compliance Lawsuits

What is an ADA Web Accessibility “Tester”?

What Gives Someone Ground to Sue?

Acheson Hotels, LLC v. Deborah Laufer

Supreme Court Case Takes Unexpected Turn

The Future of Web Accessibility

Steps Businesses Should Take to Ensure ADA Compliance

Protect Your Online Business

Increased Website Use

Extended Market Reach

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What is Alt Text?

How to Add Alt Text to Your Images?

When Should I Use Alt Text?

1. Images of Text

2. Functional Images

3. Informative Images

4. Decorative Images

Image Alt Text Best Practices

Describe an Image and Be Specific

Avoid Redundancy

Write for People, Not Search Engines

Review for Spelling Errors and Punctuation

Image Alt Text Example

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Web Accessibility and User Experience

Search Engine Optimization

Take the Next Steps Toward Accessibility

The World Wide Web Consortium

What is WCAG?

WCAG Structure

An Example of WCAG Success Criteria

WCAG Conformance Levels

Understanding How WAI Maintains and Updates WCAG

Which Version of WCAG Should I Use To Test My Content?

Is WCAG a Legal Requirement?

The Rise of ADA Web Compliance Lawsuits

Understanding What Conformance Means

Building a Strategy for WCAG Conformance

What is AI?

ChatGPT

AI and Machine Learning in Web Remediation

AI Testing for ADA Web Compliance

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AI Creating Alternative Text Descriptions

Predicting and Prioritizing Accessibility Issues

Limitations of AI for ADA Remediation

Manual Auditing: The Gold Standard

Partner with 216digital for ADA Web Remediation

The Current Limits of Automation

What is Manual Testing and Remediation?

Why Choose Manual Testing?

Functionality

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Content Review

When a Manual Audit is Needed

Facing an ADA Web Accessibility Lawsuit

What Components Make A Good Manual Audit?

What You Should Look for in an Accessibility Partner

Bring Your Site to a New Level of Accessibility

What is the ADA?

What Does the ADA Cover?

Who Has To Be ADA Compliant?

Is ADA Compliance Mandatory for Websites?

How Does the ADA Assess Web Accessibility?

The Rise of ADA Web Compliance Lawsuits

What Are the Most Common Accessibility Issues Cited In Legal Claims?

Why You Need to Take ADA Web Compliance Lawsuits Seriously

Find Out If Your Website is ADA Compliant

The Americans with Disabilities Act

What is an ADA Web Accessibility Lawsuit?

How to Mitigate the Risk of a Website Accessibility Lawsuit