2021 ADA Website Compliance: Best Practices, Lawsuit Trends, WCAG 2.2

2020 saw Congress introduce a bill for web accessibility, the almost release of WCAG 2.2, and a class actions twist to ADA lawsuit filings.

As the calendar turns to 2021, below are the best practices for ADA web compliance as well as how the 2020 happenings above will affect the legal landscape going forward.

Best Practices for ADA Web Compliance

As the Americans with Disabilities Act (ADA) doesn’t discuss websites or apps, best practices for ADA compliance are assembled through the evolving legal landscape (proposed legislation, court rulings, lawsuit filings, DOJ positions and filings, DOJ’s ANPRM, other laws such as Section 508).

Obviously, a best practices list isn’t ideal (we’d rather have a clear law) but if you follow the bullet points below, it’s hard to fathom how you could be liable under the ADA (or receive a non-boiler plate demand letter).

  • Audit and remediate your website or app to be fully WCAG 2.1 AA conformant
  • Make sure automated WAVE and Axe automated scans return 0 errors (this reduces risk of litigation)
  • Have your website or app tested by users with disabilities to its free from any practical encumbrances
  • Publish a public accessibility policy that states and demonstrates your commitment to accessibility
  • Continue to monitor and maintain accessibility
  • Provide accessibility support and invite feedback

Projected 2021 Lawsuit Trends

Based on emails I receive and lawsuit data from the Fall of 2020, here are trends or occurrences that project to continue or increase in demand letters and lawsuit filings:

  • More mobile app lawsuits
  • More lawsuits centered around insufficient closed captioning
  • More small businesses targeted, lowered settlement amounts for smaller organizations (COVID-19 discounts)
  • More class action filings
  • More lawsuits will include websites with accessibility overlay widgets

WCAG 2.2 Release

WCAG 2.2 was originally to be released in November of 2020 but now the official publish date is expected in the Summer of 2021.

Legally, I don’t think this will have a significant effect in the United States or even globally. After all, in the U.S., even 2.0 AA is still only seen as a point of reference, rather than a legal mandate.

The European Union was the first to incorporate WCAG 2.1 AA standards so there’s a good chance EN 301 549 is the first law to adopt 2.2 AA.

I’ll still advise clients to embrace 2.2 AA as it does increase accessibility, demonstrates genuine commitment, and there’s no downside besides an incremental workload.

Online Accessibility Act

Although the Online Accessibility Act was introduced in October 2020, it’s unclear how long it will take to pass —likely not until 2022 since the bill in its current state is flawed.

The major takeaway from the Online Accessibility Act is we got a great preview into what a U.S. web accessibility might look like. Here are three key takeaways:

  • WCAG 2.0 AA was the standard used
  • Only websites and apps were mentioned
  • The details were left to the Access Board

Looking Ahead

I expect some shifts in how digital accessibility is litigated in 2021 (see above) but the best advice remains the same: make your digital assets WCAG 2.1 AA conformant.

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