Why Your Inaccessible Website Could Get You Sued and How to Prevent It

October 15, 2018 BY JACLYN LEDUC
Updated: June 3, 2019

Ken Nakata is the Director of Accessibility Consulting at Cyxtera Technologies, where he helps organizations manage their IT accessibility in both digital and traditional environments. In the past, he has overseen countless Americans with Disabilities Act (ADA) investigations, and helped to shape current ADA law and policy. He was even a leading participant in the final rule-making for Section 508 of the Rehabilitation Act. Nakata aims to build commitment to accessibility within organizations, ultimately helping them to avoid web accessibility lawsuits altogether.

We recently held a live webinar with Mr. Nakata, where he overviews the current digital accessibility landscape and reveals what you can do to avoid being sued for website inaccessibility.

Coming up: background on web accessibility lawsuits, synopsis of accessibility law, and a solution for web accessibility.

Background: Web Accessibility Lawsuits

Litigation cases involving the ADA are not new, however there’s been a recent shift in the number of cases being brought forward. This change highlights the importance of digital accessibility for people with disabilities.

The Nationwide Explosion of ADA Cases

In 2015, there were just 57 lawsuits regarding web accessibility. In October 2018, there were nearly 1,200 web accessibility lawsuits with that number estimated to hit 1,500 before the end of the year. Additionally, the majority of these cases are out of the southern district of New York, known as Manhattan. Though nothing truly accounts for this geographic concentration of web accessibility lawsuits, Nakata believes it could be due to either the plaintiff or the plaintiff’s attorney being central to New York. In the past, hotspots for litigation have been Miami, New York, Massachusetts, and California.

Regardless of where they’re coming from, there’s been a huge upward trend in web accessibility lawsuits, but why?

ADA web accessibility lawsuits have grown from 57 cases in 2015 to over 1200 in October 2018.

(# of cases)

Outlook on Web Accessibility

“Web accessibility lawsuits…[are] really important for enforcing the rights of people with disabilities,” says Nakata, and the number of people with disabilities is substantial.7.3 million people in the U.S. are blind or have visual impairment. According to The Census Bureau, 1 in 7 people in the U.S. have a disability. Among this group, 7.3 million are blind or have a visual impairment according to the National Federation of the Blind (NFB). These numbers are said to grow due to the rising percentage of U.S. citizens over the age of 65, which could potentially grow to 24% over the next 40 years.

The numbers don’t lie, and the importance of web accessibility is only going to increase. Accessibility is incredibly vital, and ensures that blind, visually impaired, and other disabled people can fully participate in society, and web accessibility lawsuits will play a major role in the future of digital accessibility.

Legal Synopsis of Web Accessibility

There are many legal nuances for both traditional and digital accessibility, but in light of the upswing of web accessibility lawsuits, it’s worth having a basic understanding of which laws apply to you.

Procurement-based Disability Laws

This type of law comes from Section 508 of the Rehabilitation Act and various state analogs to Section 508. Rather than focusing on individual accommodations, it ensures that state agencies and the federal government are adhering to particular design standards in their technology use. These design regulations come from the WCAG 2.0 AA or Section 508 standards.

The importance of this type of law is that it sets the infrastructure to then provide individual accommodations thereafter. As of now, there’s been little focus on litigation for this type of accessibility law.

Individual-based Disability Laws

In the context of web accessibility, the ADA contains an effective communication requirement which comes out of its Title II and Title III regulations. Title II and Title III apply to private businesses and state and local government, respectively.

“A public accommodation shall take those steps that may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services…” 28 CFR & 36.303

What is effective communication in terms of accessibility? It depends on whether it’s a traditional or a digital environment.

examples of effective communication in the traditional and internet environment

In addition to private businesses and state and local government, federal government and federal grantees must also follow the effective communication requirement under section 504 of the Rehabilitation Act.

Four Part Solution

In order to increase your organization’s digital accessibility and decrease the likelihood web accessibility lawsuits being filed against you, Nakata recommends a simple four step solution comprising of an accessibility statement, manual testing of key use cases and templates, automated testing for large enterprise organizations, and creating a culture of accessibility.

Accessibility Statement

Having an accessibility statement is, “probably the single most important thing that your organization can do for accessibility,” says Nakata, although many organizations fail to consider creating one. An accessibility statement normally consists of three parts:

  • The accessibility policy sets forth an organization’s commitment to accessibility and identifies the plan for achieving and ensuring it.
  • Contact information includes a phone number or email address, and response time information such as when a person with a disability may call or email, or how long it will take for the organization to respond to that person.
  • Providing a feedback mechanism is best practice since it allows for customer input and can reveal certain accessibility problem areas to focus on and fix.

3 Parts of an Accessibility Statement: policy, contact info, and feedback mechanism

Manual Testing of Key Use Cases

Only one-quarter of the WCAG 2.0 AA standards can be robustly tested using automated technologies, therefore the other three-quarters must be tested manually. A human being can read through web pages using assistive technology, and in doing so identify key pages that are most visited by users and most crucial for the purpose of the website. For example, key pages for an e-commerce site would include product and checkout pages since visitors likely go there to shop. The goal is to make these key pages fully accessible to persons with disabilities, therefore manually testing them is critical.

It’s important to note that manual testing must always be conducted according to universal standards such as WCAG 2.0 AA standards, rather than testing to the usability standards of an individual. Testing usability is beneficial, but following universal design will ultimately save you from web accessibility lawsuits.

Automated Testing for Large Organizations

Large enterprise organizations sometimes have thousands or even millions of web pages which don’t fall into a few key use cases, making manual testing unrealistic and difficult. In this case, automated testing is important. Typically, there are four key issues that come up in web accessibility lawsuits:
4 key issues in web accessibility lawsuits

  • Missing alt text from images
  • Missing alt text from image maps
  • Improper table markup
  • Missing labels in forms

The good news is that each of these issues can be easily tested using automation. In addition to being able to test for common accessibility issues, automated testing offers other benefits like increased accountability of stakeholders within an organization, and measurable progress.

Create a Culture of Accessibility

The main goal of creating a culture of accessibility is to make accessibility self-sustaining within an organization. One effective way of achieving this is by utilizing checklists and input checklists across the web design and development process.

The first step to implementing these checklists is to lay out a set of requirements, based on WCAG 2.0 AA, that are associated with each role throughout the web design and development process. Next, develop a checklist for each of the different teams responsible for website creation: design, copy, and development.

Input checklists place further accountability across teams. When the design team passes on the wireframe of a website to the copy team, the copy team would look to an input checklist for accessibility adherence before accepting the project from the design team, and so on down the pipeline.

The advantages of utilizing this system are significant:

  • It’s very flexible for different team and design flows.
  • It’s self-policing, and provides a set of built-in reminders from input checklists.
  • Distributes responsibility across all teams.
  • Over time, it helps to create a culture that supports accessibility.

Watch the webinar, Why Your Inaccessible Website Could Get You Sued and How to Prevent It, below!

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