Market Problem: Website Accessibility Services Aren’t Tailored to Prevent ADA Lawsuits
In Part I of this two-part article, I explained why the website accessibility market is confusing.
Now let’s discuss the main problem with the marketplace: misalignment.
Most website owners (in the United States) are seeking out web accessibility services to respond to or prevent litigation.
Stated another way, systematic lawsuits and demand letters from plaintiffs’ law firms are what is driving the United States web accessibility market.
And despite many digital accessibility companies who sell their products and services under a compliance umbrella — with the selling point their services will put a stop to lawsuits, they usually don’t.
This means there is a misalignment in the market; products and services aren’t meeting the customer needs. (Note that the customer is the buyer, not necessarily the end user.)
In the case of overlay widgets, overlays don’t make websites accessible whatsoever.
Buying an overlay is like buying a cardboard cutout of a TV when you’re trying to buy an OLED big screen.
So there’s nothing of substance in terms of accessibility.
And when it comes to preventing lawsuits, the answer is a resounding no, overlays do not stop lawsuits.
OverlayFalseClaims.com has a non-exhaustive list of organizations who have been sued despite having an overlay installed (PDF link).
Note that self-proclaimed instant “solutions” AccessiBe and UserWay appear repeatedly on that list.
Scans are problematic in the sense that people have an embellished view of their capabilities, so much so that many people truly refer to them as “ADA compliance checkers”.
The reality is that scans, whether free or premium, flag a limited subset of website accessibility issues. The issues they do purport to flag still need to be manually reviewed, as false negatives are common. Additionally, having a report of the existing issues does not resolve them.
Scans are very helpful tools that do identify several accessibility issues claimed in litigation; they’re just not the mega software solution that sellers portray them as and website owners want them to be.
A WCAG 2.1 AA website accessibility audit is an extremely useful report. I myself sell audits through Accessible.org.
An audit is a formal evaluation that results in a list of all accessibility issues within the pages/screens in project scope per a particular version of WCAG (in theory).
However, there are several drawbacks.
First, audits usually take 3–5 weeks to return.
Second, audits themselves do not change the accessibility of your status (you just know the issues that exist).
Third, the audit does not prioritize the accessibility issues that are commonly claimed in litigation. Rather, the audit contains a comprehensive list of issues per WCAG 2.1 or 2.2 AA. Issues have labels attached such as critical, urgent, severe, etc. but, again, these aren’t prioritized by litigation risk.
Fourth, the audit can be overwhelming, both in terms of complexity and length. Many web teams start strong but then fade on effort which means work goes unfinished.
Fifth, there is a disconnect between the auditor (the person finding the issues) and the remediator (the person fixing the issues) which typically leads to friction and partially explains why the remediation process is so lengthy.
Sixth, if any changes or uploads are made to the website, the audit loses its freshness. Over time, the audit can completely lose its utility.
Seventh, remediation usually takes 1–3 months, if not longer. (It practically doesn’t need to, but, in my experience, it does.)
Eighth, once remediation has taken place, there usually needs to be a re-audit performed to ensure remediation has been performed correctly and issues have been resolved. Even though there will be less issues to go through, a re-audit will still take at least two weeks to return.
Ninth, after the re-audit is delivered, remediation will need to resume again, assuming there are still issues found.
And it’s implicit in the nine items above, but, as a reminder, most website accessibility companies do not offer remediation services.
This time-consuming process doesn’t reconcile with website owners who want immediate relief from lawsuits.
In terms of preventing or resolving litigation, time is of the essence. As I’ve detailed, audits are slow and take months to implement. It’s extremely unlikely that all issues will be resolved even after the initial remediation takes place.
User testing is similar but also very much distinct from an audit.
With user testing, one or more professionals with at least one disability test your digital asset for practical use. They’re not evaluating for WCAG conformance, they’re testing against user experience, usually with assistive technology.
The underlying objective of user testing and an audit is the same: find accessibility issues. But the two services are complements to one another, not replacements.
User testing is not meant to be exhaustive of accessibility issues (both technical and practical), but rather a literal test of the accessibility of your asset.
The best way to leverage user testing is to conduct it after the second round of remediation has been completed.
Services Aren’t Designed to Prevent Litigation
Many of the legacy providers in digital accessibility exist purely for accessibility, not litigation prevention and/or compliance with laws such as Section 508, the Americans with Disabilities Act, etc.
So the best way to think of accessibility services is that they are designed to improve the accessibility of your website, mobile app, or other digital asset and, ultimately, make your asset fully accessible.
But that purpose isn’t in 1:1 alignment with preventing litigation.
Plaintiffs’ lawyers involved in recurring ADA website litigation:
- don’t provide grace periods or warnings
- don’t care if you’re in the process of making your website accessible
- don’t care if you’ve hired a reputable accessibility company
- actively seek out any potential accessibility issues that exist, regardless of how many you’ve fixed
- use technical issues as evidence of barriers to access
In short, plaintiffs’ lawyers are on the offensive which means you must be both proactive and strategic in how you approach accessibility.
The traditional approach of a WCAG 2.1 AA audit combined with immediate remediation, executed swiftly and correctly, should eliminate risk of litigation.
However, that optimal sequence is much more of an ideal than a reality for most organizations.
This not only means that website owners remain at risk of an initial complaint or demand letter, but that they can be sued again and again — sometimes by the same law firm.
Second or repeat lawsuits have become fairly common.
The answer to the market’s objective is to find and fix the precise accessibility issues that are being claimed in litigation, first.
And do so immediately.
Then, once there is relief from looming litigation, continue on with full WCAG 2.1 or 2.2 AA conformance.
This is the scenario in which website owners can be confident in the products and services they buy.
Until this year, there was no such product or service.
The lessons in the ADA Compliance Course amount to an SOP or step-by-step instructions that you can give your team to immediately find and fix the most commonly claimed accessibility issues in litigation (from the most active plaintiffs’ law firms).
Once your team finishes the ADA Compliance Course, the WCAG Course lessons explain all of the success criteria in WCAG 2.1 AA in plain English so your team can work on full conformance.
I also have plans to incorporate WCAG 2.2 AA success criteria into the course.
In a Nutshell
The traditional digital accessibility market doesn’t hit the market need flush.
To be sure, there’s notable overlap, but when website owners buy a product or service to resolve their problem, all too often no problem is actually resolved.
I believe training your team while they take immediate action is the imperfect key to success.
In other words, your team develops accessibility knowledge and experience while they resolve issues.
This type of experiential learning fosters a more tangible understanding of web accessibility which means web teams will produce more accessible code and content, introduce fewer accessibility issues, and website owners will be less reliant on third-party services.