That was the opening line of a document received by one of my clients recently. Yikes! Why? Apparently, her website did not meet ADA compliance. This raises an interesting question:

Should web technologies like Netflix’s streaming service be covered by the ADA (American Disabilities Act)? If we can agree that disabled persons should have access to services like Netflix, what about websites? For example, should a blind person be able to order a pizza from the Domino’s website?

As it turns out, Domino’s Pizza recently lost a website accessibility lawsuit after nearly five years of intensive litigation (Robles v. Domino’s Pizza). The federal district court in California granted plaintiff’s motion for summary judgment after finding that the website was not fully accessible and ordered Domino’s to make its website comply with the WCAG 2.0.

So, what about YOUR website?

In November of 2018, the DOJ affirmed that Title III of the ADA applies to websites. According to the American Bar Association, since that ruling, website and mobile app accessibility lawsuits have made up roughly a fifth of all ADA Title III filings in federal courts. This number has increased by 300% and now consistently exceed 10,000 lawsuits annually. An estimated 265,000 demand letters were sent in 2020 alone.

Websites that fail to comply with the ADA website accessibility guidelines are perfect candidates for ambulance-chasing law firms that make a lot of money suing website owners. Ecommerce business are particularly vulnerable, accounting for 77.6% of the lawsuits filed. The reason: If your website is commercial in nature (it sells goods or services), then it is considered a place of public accommodation, even if you have fewer than 15 employees.

Can you be sued if your website is not ADA-compliant?

Yes, you can face a lawsuit for websites that are not ADA-compliant. Recently, I had a client that was served by an attorney in New York for their website not being ADA compliant.  Their website does not generate much revenue, but they are still liable for fines of $55,000 to $75,000 for the first offense (and $110,000 to $150,000 for subsequent offenses). Most of these cases are settled outside of the courts for $20,000 to $150,000 on average. That could put many companies out of business.

Insurance might help. But no matter your coverage, it does not cover the remediation process.

In my research, I’ve seen it mentioned that many assume their business websites are compliant and have nothing to worry about. They thus take things too lightly and do not do anything to check their website’s accessibility until it’s too late. What I have found however is that most businesses are not even aware that ADA compliance for their websites is something they have even considered as they did not realize this was “a thing.”

I have found that most businesses are not even aware that ADA compliance for their websites is “a thing.” Share on X

Sadly, predatory lawsuits are definitely a thing. The DOJ has done nothing to stem the tide of abusive litigation and ecommerce businesses continue to pay the price. Here is the reason why these these lawsuits are predatory: Under the ADA, plaintiffs who sue for violations may not collect monetary damages (individual states, such as California, do allow plaintiffs to collect damages, but not the ADA). The law allows for remedies of the violations through court orders, and for plaintiffs to recover legal fees that result from the lawsuit. In other words, the only ones making money are the lawyers!

Business Implications

Legal issues aside, there is actually a good business reason to make sure your site is accessible. By having an inaccessible website, you are leaving out about 19% of potential customers. This is a business justification for making your site accessible. In an article about the business case for making your website accessible, the W3C states that the global market of people with disabilities is over 1 billion people with a spending power of more than $6 trillion.

There is another business reason for making the effort to make your site accessible: Eligible small businesses (those doing less than $1 million per year in revenue and having fewer than 30 employees) can use Form 8826 to claim the disabled access credit. This allows your business a tax credit that can help alleviate the costs of becoming compliant.

IRS Tax Form 8826 - Disabled Access Credit

Good SEO Practices

I have written a number of articles on best practices for SEO and it turns out that many of the things you should be doing to make your website more attractive to the search engines are often the same things you should be doing to make your site more accessible. SEO guidelines and accessibility guidelines go hand-in-hand.

For example, using ALT text on all of your images to describe what the image is about. Google is like a sightless person, and if you don’t tell them what your page is about and describe it to them, they don’t know. Videos are also great as they can explain things in an audible manner, but you should also include transcripts for the hearing impaired.

Speaking of audio, most blind people use a program called Non Visual Display Access (NVDA) as a screen reader. I recommend that you download this yourself and test your website – what happens when you are blindfolded and try to navigate your site using NVDA? Does it clearly describe your photos? Are you using abbreviations that the screen reader doesn’t understand?

Test your website by running the NVDA Screen Reader program when you are blindfolded. The results may startle you. Share on X

Using large text with a high contrast compared to the background is helpful to both the search engines and towards making your website compliant. Many websites use a small text such as a 10pt serif font. The minimum recommended font size for websites is 16pt and should be a non-serif font without the extra decorations.

Contrast is a big part of being able to easily read a website. From a design standpoint, we might not like our websites to be all white with black letters, but you can use color effectively. For example, if your logo and primary business color is red, what you want to do is look for the opposite color on a color wheel. In this case, directly opposite of red on the color wheel is cyan. If your primary color is green, the opposite color would be fuchsia, and yellow would be blue, etc.  This is a good trick to use for determining what color your buttons should be on your site as well.

Good SEO practices also state that you should use one, and only one, H1 tag on each page. This clearly defines what the page is about. Then you should organize your copy using a hierarchy of H2, H3 tags, etc to clearly outline your content. This is also a requirement for ADA accessibility guidelines.

If you have a WordPress site, you can access several ADA compliance plugins, like Accessibility Suite and WP Accessibility Helper. These plugins can audit your site and add tools that visitors can use to make your website accessible.

Compliance Audits

Once you have your site properly organized for both SEO and ADA accessibility, it is time to run an audit to see if your site meets the criteria for compliance. There are a number of sites that do this. Quite honestly, most of them are designed to sell you their services and a scan from one site will differ from a scan by another site as there is not a definite set of rules.

When my client was facing their lawsuit, I looked at a large number of these services. After careful review, I settled on a company called AccessiBe. You can run a free scan on the AccessiBe website to see if your website is compliant. Then, you can install a free 7-day trial of their AI-based widget that helps to fix any problems you might have and run the scan again.

I also recommend that you create a page on your website with a disabilities policy. A generic one is included with Accessibe, but you might want to consider your own. The W3C initiative has a policy generator on their site at https://www.w3.org/WAI/planning/statements/generator/#create

I now have AccessiBe installed on my website. I am a believer in this product and have become a partner with them. Give me a call and I will help you get set up.

Bottom line: having a compliant website can not only keep you out of a costly legal battle, it can lead to more sales and better ranking on search engines.