ADA Compliance for Websites in Plain English
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(Updated for 2023)
Quick Overview
- The ADA has generally been interpreted by courts to apply to websites
- The DOJ’s stance is that the ADA does apply to websites
- DOJ official regulation for website and app accessibility for Title II of the ADA is underway, Title III regulation (for private entities) will follow
- WCAG 2.1 AA conformance and posting an accessibility statement are best practices for material compliance
- The key to practical compliance is to resolve the issues plaintiffs lawyers look for
- There are no instant “solutions” for website accessibility
Common Questions
What does ADA compliant mean for websites?
The legal standard under the Americans with Disabilities Act is meaningful access. In terms of preventing litigation, resolving the 15+ issues plaintiffs lawyers look for will significantly reduce your risk of a lawsuit. And full WCAG 2.1 AA conformance is best practice.
Does my website need to be ADA compliant?
Generally, yes — especially if it’s commercial in nature. Private litigation is driving enforcement of the ADA against digital assets, and the DOJ has reaffirmed its stance that the ADA applies to websites of businesses open to the public or “public accommodations”. However, circuit and state courts vary in how they apply the ADA to websites.
Defendants have a great technical argument (there is no explicit law that mandates digital accessibility for private entities), but the cost of defense can be extremely high and there is no guarantee of winning since the ADA has been liberally construed in many courts.
Because plaintiffs’ lawyers don’t mind litigating and the cost to defend is so high, practically, you need to make your website accessible to be compliant with the ADA.
How do I know if my website is ADA compliant?
The best practices for ADA compliance are 1) full WCAG 2.1 AA conformance and 2) publishing an accessibility statement which includes at least one method of contact for support and a means of providing feedback.
When it comes to stopping ADA website lawsuits or practical ADA compliance, I highly recommend my course, the ADA Compliance Course. You can find out more at ADACompliance.net.
Overview
The best practice making your website compliant with the ADA is making your website conformant with the WCAG 2.1 AA technical standards.
Translation: You have a to-do checklist of 50 accessibility things to account for on your website, app, etc. to be more or less practically compliant with the ADA.
That’s not the law — there actually is no law for private entities in the U.S. that mandates web accessibility — but that’s the practical effect of early DOJ actions, court rulings in recent years, and floods of demand letters and complaints from plaintiffs’ law firms.
As you continue to research, you’ll likely have concerns related to the following:
- WCAG — what is it?
- overlay widgets — why are they worthless?
- automated scans — how much do they flag?
- accessibility audits — do you need one?
- demand letters and lawsuits — how to prevent them?
I’ll touch on each bullet point in this article.
Oh, and just in case you’re wondering who you’re getting this info from…
My name is Kris Rivenburgh.
I’m an attorney, the author of The ADA Book, and the founder of Accessible.org.
Okay, that’s enough intro, let’s touch on each of the following topics one-by-one so you can dazzle everyone at your next cocktail party.
The Law
The law that primarily governs accessibility in the U.S. is the Americans with Disabilities Act (ADA).
The gist of the ADA is if you can’t discriminate based on disability so you need to make things accessible.
Even though it doesn’t mention websites anywhere, Title III of the ADA has been overwhelmingly been interpreted by the Department of Justice (DOJ) to apply to websites. U.S. courts have mostly held the same way, but courts are uneven in how and when they apply the ADA.
What causes plaintiffs’ lawyer to initiate litigation?
Plaintiffs’ lawyers look for ways your website or web content can arguably be inaccessible, usually by way of technical accessibility issues per WCAG.
The ADA Compliance Course tells you the exact issues plaintiffs lawyers look for and how to find and fix them.
If your website isn’t fully WCAG conformant, does this mean you’re in violation of the ADA?
No, again, there is no current formal legal prescription for web accessibility for private entities in the United States.
As it stands now, WCAG 2.1 AA are the technical standards the DOJ and courts reference as a guide for how to make your website compliant (full conformance is mandated when the DOJ enters into a settlement or a court rules against a defendant).
As mentioned above, plaintiffs’ lawyers seek out any number of technicalities where a website could conceivably have an accessibility issue (e.g., there is no skip navigation link).
(Note that the impact of accessibility issues varies. Some are more inconveniences while others prevent or significantly hinder access.)
With the discretion to litigate in plaintiffs’ lawyers hands, they almost always opt for litigation. If they sue you or send you a demand letter, while this doesn’t mean you technically violated the law, it has the effect of a loss.
When we examine Title III of the ADA, since it doesn’t speak directly to websites or mobile apps, we have to go by the broad language of the statute which requires:
the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation
So the technically correct legal answer is to make it so that everyone, including persons with disabilities, can enjoy the “full and equal” use of your website; they can access content, navigate your website successfully, engage with different elements, etc.
Restated, generally, we have to make sure our websites provide for meaningful access to those with disabilities.
U.S. courts and the Department of Justice (DOJ) have continually referenced the Web Content Accessibility Guidelines (WCAG) 2.1 Level AA success criteria as a technical standard to gauge whether websites are accessible.
But, just because our website doesn’t fully meet a WCAG success criterion doesn’t mean we’re in violation of the ADA.
For example, let’s say my text color contrast ratio is 4.4:1 and doesn’t meet the 4.5:1 guideline set in WCAG, does that mean I’m violating the ADA?
No.
Here are some quotes from authoritative sources on this:
Assistant Attorney General, Stephen E. Boyd, stated in a letter to Congress that entities (individuals, businesses, companies, organizations, etc.) have flexibility in how to comply with web accessibility.
Absent the adoption of specific technical requirements for websites through rulemaking, public accommodations have flexibility in how to comply with the ADA’s general requirements
The Section508.gov blog says the same thing:
Until the DOJ adopts specific technical requirements for web accessibility in a final rule, if you’re subject to the ADA, you have more flexibility in determining how to make your website compliant with the ADA’s general requirements of nondiscrimination and effective communication.
The Ninth Circuit Court has also stated we have flexibility in accessibility:
the ADA and its implementing regulations are intended to give public accommodations maximum flexibility in meeting the statute’s requirements
Here are three more relevant legal bullet points:
Legal bullet points
- The ADA is essentially a strict liability law which means there are no excuses/defenses for violations (e.g., ignorance, web developer is working on it, etc.)
- Parallel state court lawsuits alleging violation of state anti-discrimination laws (Unruh Civil Rights Act in California and New York Human Rights Laws in New York and New York City) have become extremely popular because they’re similar to the ADA (in that they prohibit discrimination based on disability) but provide for more damages to plaintiffs.
- Having fewer than 15 employees doesn’t exempt you from ADA compliance as a place of public accommodation (Title I is what you’re thinking of, it’s for employers)
WCAG
The ADA is the legal side — are you in compliance with the law?
But what about WCAG?
Think of WCAG as the technical side: do you conform to the technical standards?
WCAG is not the law. It may be incorporated into the law — and already has in many territories — but it’s not the law.
WCAG stands for the Web Content Accessibility Guidelines.
These guidelines are published by the World Wide Web Consortium (W3C) under their Web Accessibility Initiative (WAI).
In a nutshell, the W3C publishes standards to make the web more uniform and run better; if we’re all using the same accessibility guidelines, it makes things better in many ways.
There are different versions (1.0, 2.0, 2.1) and conformance levels (A, AA, AAA) for WCAG but let’s keep things simple and focus in on the two that matter most to you:
- WCAG 2.0 AA
- WCAG 2.1 AA
2.0 AA has 38 success criteria.
2.1 AA has 50 success criteria.
Think of success criteria as bullet points or things to do to make your website more accessible.
What’s great to know is that 2.1 AA includes all of 2.0 AA.
This means 2.1 AA conformance adds 12 more things to 2.0 AA (50–38=12).
I call 2.0 the classic standard and 2.1 is the present standard. 2.0 was published in 2008 so it’s missing some key mobile accessibility issues.
(Note that 2.2 is the future standard - it’s release is expected in late 2023, but don’t let the 2.2 release disrupt you, focus on 2.1.)
Keep in mind that some of these 50 to-dos are much more critical than others (both in terms of accessibility and legal risk).
I cover exactly how to lower your legal risk by prioritizing the issues plaintiffs lawyers look for in the ADA Compliance Course.
Part of the problem with WCAG is that it’s extremely technical, long, and difficult for anyone to read which makes it that much more difficult to make a website or mobile app accessible.
Here’s the WCAG source documentation.
Nobody wants any part of reading that so I’ve created the WCAG Course which can help anybody learn the Web Content Accessibility Guidelines in less than 3 hours — even if you’re non-technical and a complete beginner.
Go to WCAGCourse.com to find out more.
Overlay Widgets
By now I’m sure you’ve seen some vendors claiming they have “solutions” to instantly make your website accessible and ADA compliant.
They don’t.
What’s funny is if you look at their services offered, they basically admit their automated widgets don’t make your website accessible.
Oh, and there’s also publicly available documentation that shows literally hundreds of website owners have been sued despite having these widgets installed.
Automated Scans
An accessibility scan is a useful tool that can flag a handful of accessibility issues.
Scans are helpful but very limited.
Website accessibility scans give the ability to flag about 20-25% of WCAG 2.1 AA success criteria for further review.
Some of the issues flagged are more conclusive while others are only a partial catch (e.g., 50% of a success criterion is able to be automatically flagged).
A scan saves time and reduces human error in flagging accessibility issues but there’s only so much automation can catch.
And even on the issues that can be caught with a scan, it’s important to know that they still require a manual review.
Single page scans are usually free. I recommend using the WAVE tool for beginners and the AXE tool for more advanced users.
Accessibility Audits
An audit is a formal evaluation conducted by an accessibility professional who manually evaluates and tests a website against WCAG 2.1 AA.
Once an audit is completed, a report is delivered to the client detailing all of the accessibility issues for a given scope.
Demand Letters and Lawsuits
Settlements in “ADA website” cases typically range from $3,000 to $25,000.
The best course of action to prevent litigation is to get started remediating accessibility issues as soon as possible.
Also, ask yourself the following two questions:
- What is the primary purpose of my website?
- What are the common paths that visitors take once they’re on my website?
You want to make absolutely sure both the primary purpose and common paths are clear of any barriers that could potentially prevent access or cause frustration.
By the way, did you know you can make your website ‘ADA compliant’ in less than two weeks by following the ADA Compliance Course. Yes, it’s true. Go to ADACompliance.net to learn more.
