The 2021 Guide to Website Accessibility (for Lawsuit and Demand Letter Prevention)
Website accessibility is a white hot topic because everyone — from corporations to non-profits to small businesses — is getting sued.
This article will help you understand the legal landscape and what proactive steps you can take to mitigate your risk of litigation.
Let us march forward to the promised land.
Web accessibility litigation is a mounting risk globally but I’m going to focus on the U.S. in this article.
If you’re from another place, don’t fret, because you’ll see we all end up in the same place.
For Americans, we’re mostly focused on Title III of The Americans with Disabilities Act (ADA). It says that “places of public accommodation” need to be accessible to persons with disabilities.
Even though websites were never a part of the law, the ADA has been recently (and repeatedly) construed to include websites as places of public accommodation.
No formal federal guidance is expected in 2020 but the writing is on the wall: You need to make your website accessible.
The ADA implicates private entities which means you and I and mega corps and innocent little non-profits can all run afoul of it.
And just FYI, the 15 or more employees thing is only for Title I of the ADA.
Title I covers employment discrimination and employers with 15 or more employees are subject to it.
Title III covers places of public accommodation and there is no such 15 employee threshold.
This means you don’t need to have 15 or more employees to violate Title III (and thus be found to discriminate against persons with disabilities).
Another federal law that comes into play is the Rehabilitation Act. Section 508 is an amendment that requires information and communications technology (ICT) to be accessible for federal agencies and departments. And, for our purposes, Section 504 sweeps in recipients of federal funding (like universities) to be included in that.
Websites fall under that ICT umbrella.
Yet another federal law that plaintiffs’ lawyers are using as a basis to send demand letters (in the real estate industry) is the Fair Housing Act (both federal and state housing acts).
There are a few other laws and certainly some state laws (see Unruh Act, California and the New York Human Rights Law) that you need to be mindful of (because you can absolutely be hailed into a state court), but 508, Title III of the ADA, and the FHA are the primary federal laws to be on the lookout for.
Where we tie in globally is that, generally, if you can meet WCAG 2.1 AA, your website will be very likely considered accessible and thus in compliance with your territory’s laws.
There are a lot of other legal details but blah, blah, blah, right?
WCAG 2.0 AA (and WCAG 2.1)
The Web Content Accessibility Guidelines (WCAG) are a set of technical standards to make the web a more accessible place. WCAG has multiple versions that layer on top of one another with different success levels of accessibility: A, AA, and AAA.
AAA is super strict and requires a Herculean effort to meet.
AA is semi-strict and is medium difficult.
A is the lowest rung and is easier to meet than the other two.
WCAG was published by the Web Accessibility Initiative (WAI) of the World Wide Web Consortium (W3C). The W3C is a non-profit, international community of do-gooders who try to make it so the web works cohesively.
WCAG 2.0 AA is continually referenced as a good standard for web accessibility across the world.
There are 38 different success criteria (AKA 38 things to check off that your website meets) that comprise WCAG 2.0 AA (once you roll up A into AA).
As of 2021, the best case scenario for your website is that you meet all of the success criteria of 2.0 AA and then build on top of that to integrate the recently published 2.1 AA guidelines (there are 12 more new bullet points in 2.1 to make 50 total success criteria).
How to Make Your Website Accessible
The short, fluffy answer is to make your website and digital offerings fully accessible and enjoyable to those with disabilities — to the same extent anyone else can enjoy them.
That’s the spirit of The Americans with Disabilities Act.
The let’s get serious and not get sued answer is to have someone make it so every last aspect of your website is scrutinized and fixed so that it meets all or as many of the 50 WCAG 2.1 AA success criteria as you can muster, especially the more litigated accessibility issues like alt text.
Also, test for usability. It’s one thing to account for all WCAG success criteria, it’s another to make sure your website is practically usable and doesn’t have any barriers.
The process of fixing a website to become accessible is remediation. You’ll need a developer for the more technically complex requirements.
In my ADA Website Compliance article, I talk about a few big points of emphasis of website accessibility but I can tell you the biggest one for lawsuits right now:
Yes, alt text. Update your alt text values to be descriptive and convey the meaning of all your meaningful images (not decorative ones that only contribute to your web design).
The majority of web accessibility demand letters/lawsuits are rooted in missing or insufficient alt text. Once plaintiff’s lawyers have you here, they bolster their case (and make you look bad) by tacking on as many accessibility deficiencies as they can.
Alt text alone can practically be a demand letter/lawsuit stopper and it’s fairly easy to update (even if you don’t know your way under the hood of a website) so definitely work on this first.
Missing form field labels are also very important to rectify for both accessibility and litigation prevention.
I recommend partnering with a reputable company who provides either 1) remediation or 2) the technical support for your developers to remediate.
At its core web accessibility is simple but as you dive into the details, you’ll find there is a decent amount to unpack.
Remember that accessibility is a progression. Prioritize the high risk items so that you can put money towards accessibility and away from litigation.