by Mark Widawer
Last Updated Sunday, November 22, 2020
Business owners are being sued because their websites are not ADA compliant. Find out if ADA compliance is really required for your website, what the risks are, and how to make your site ADA compliant.
Image source: Depositphotos.com
You may have heard about all of the lawsuits being filed—and lost—over ADA compliance for websites. So you might be wondering whether this Federal law from 1990 actually applies to websites, and more importantly, whether it applies to YOUR website. The short answer is yes, the ADA does apply to websites, and yes, it applies to your website, too. In this article, we’ll explain what ADA compliance for websites means, why it matters, and a few tips for making your website at least a little bit more compliant than it is now.
What is The ADA – The Americans With Disabilities Act
The ADA is a regulation drafted in 1990 that protects people with disabilities from discrimination. There are several big parts of the ADA—what they call “Titles”—that regulate different types of discrimination. Title I protects against employment discrimination. Title II protects those with disabilities against discrimination by state and local governments. Title III protects those with disabilities from discrimination by “places of public accommodation,” generally referred to as businesses and other commercial entities. In other words, if you’ve got a business, you can’t discriminate against people with disabilities in your business.
Your Business Probably Already Complies with the ADA
Title III of the ADA is why you have wheelchair ramps or elevators adjacent to steps in and around your office building or retail store. It’s why you have handicapped parking spaces, doorways that are wide enough for wheelchairs, and store and restaurant counters that wheelchairs can fit below. We could go on about all of the accommodations in most physical business locations, but you know this to be the case for your physical place of business, as well as thousands of businesses that you visit.
Lawsuits Under the ADA
The ADA spawned a rash of lawsuits against businesses that were not ADA compliant, mostly for the benefit of all of society. But it also spawned a cottage industry of people who file lawsuits against businesses they never intended to patronize.
These people would visit businesses with tape measures, cameras, and clipboards and measure doorways, slopes, walkways, counter heights, and more, simply for the purpose of finding ADA violations over which they could sue. This practice earned the nickname “drive-by lawsuits” and cost many businesses hundreds of thousands of dollars, up to millions of dollars.
How Does the ADA Apply to Websites?
Websites didn’t really exist until the mid to late ’90s, so if the ADA was drafted in 1990, how does it apply to websites? That’s a great question, especially if you already know that the ADA has not been updated to specifically include references to websites.
But not all laws are written into regulations. Back in the ’90s, the U.S. Department of Justice wrote an opinion that the ADA applies to websites. They reaffirmed that opinion in 2018 in light of the many lawsuits that were being filed against businesses whose websites were not ADA compliant. The basis for this opinion is that a website is an extension of a business (and in some cases the only way to experience a business).
Those websites had been filed for many years but grew exponentially from about 50 in 2015 to over 2200 in 2018. The many court decisions which ruled in favor of the plaintiffs helped to establish “case law” about how the ADA applies to websites.
But does it apply to every website for every sized business? Yes, it does, just as the ADA applies to any size physical business establishment.
The only carve-out for some parts of the country is that some appellate courts have said that the business must also have a physical location. But that’s not the general rule in most parts of the country. And because websites can be accessed from anywhere in the country (and anywhere in the world), someone can sue you from a part of the country that doesn’t require a physical location for the ADA to apply to your website.
How California Makes the ADA More Expensive for Website Owners
There’s a website version of the “drive-by” lawsuits except that it’s far easier to visit 100 websites in a day to check their ADA compliance than it is to visit 100 physical businesses. As a result, even as the number of website ADA lawsuits has increased, the number of threatened lawsuits is estimated to be 40 times greater—upwards of 90,000 demand letters a year. In fact, there’s one woman in Florida who recently filed 175 ADA lawsuits in one year.
Interestingly, the ADA only allows plaintiffs to sue for two things: to have the problem fixed and to have their attorney’s fees covered. Both of those can get very expensive. Many states and cities have their own anti-discrimination laws that protect people with disabilities. California has one called the Unruh Civil Rights Act, which actually puts teeth into the ADA.
The Unruh Act mandates statutory penalties of $4,000 for each offense of the ADA. If you have 10 ADA problems on your 10-page website, that’s 100 times $4,000, which equals $400,000.
And if you didn’t build your website to be ADA compliant, there’s a good chance you’ve got “accessibility” issues on every page of your website, and getting a demand letter from an attorney threatening to sue you might come sooner than you’d think.
What Does ADA Compliance for Websites Mean?
Back in 1999, the World Wide Web Consortium—a standards body for the Internet—issued Version 1.0 of their Web Content Accessibility Guidelines (WCAG). Since then, it has been revised several times, and it’s now up to Version 2.1, with Version 2.2 coming soon.
The WCAG defines guidelines for making your website “accessible” to people with a variety of different disabilities, including people who:
- Have vision impairment (either low vision or totally blind)
- Have hearing impairment or who are totally deaf
- Have cognitive disabilities
- Are prone to seizures
- Have motor disabilities (ie can’t move a mouse or keyboard)
- Have ADHD
…and other similar disabilities.
How Can a Blind Person Use a Website?
Visual Impairment is just one kind of disability covered by the ADA, but a common question we often get is “How can a blind person use a website?”
One answer is that they use a computer with screen reader software, which is built according to the same WCAG guidelines. This software looks for certain elements on the page and reads the contents to the visually impaired person. If the website is not built to the WCAG guidelines, visually impaired users may have trouble using screen readers to find the information on the page.
And since the ADA requires that people with disabilities be able to “enjoy” a business in substantially the same way as a person without disabilities, this means that the website is not ADA compliant.
Why Make Your Website ADA Compliant
Avoiding lawsuits is not the only reason to make your website ADA compliant. One very compelling reason is that it’s the right thing to do. Consider for a moment how much of your day is spent online. Now imagine that you were blind and you couldn’t see or access all or most of the sites you would like to visit. Making your website ADA compliant allows millions of people to live a more comfortable, less stressful life.
And if your website becomes ADA compliant, there’s a good chance that your website will begin acquiring new customers that your old website was ignoring. So your business may grow.
Interestingly, some of the WCAG Guidelines are also in line with good SEO practices, and better SEO means higher rankings. That means even more website visitors may be coming your way.
How to Make My Website ADA Compliant
In total, there are nearly 80 different guidelines in the current version of the WCAG, separated into levels of compliance, named A, AA, and AAA. And for each guideline, there are long discussions and examples of various implementations. So to put it bluntly, making your website ADA compliant is not a trivial task. It can require dozens or hundreds of hours of work, meticulous attention to detail, and hours of testing. To make your website ADA compliant, you should modify your website to meet all of the WCAG 2.1 AA guidelines.
That said, here are a few simple examples of things you can do on your own website to make it more compliant than it probably is now.
Add Alt Tags to Your Images
Alt tags are text descriptions of images that are important to your website. So if you are a restaurant with a photo of your beautiful lasagna dinner, you need an alt tag to describe the image, like “Guisseppe’s Famous Lasagna Dinner.” Note that alt tags are not required for decorative images, such as filigrees, spacers, dashed lines, colored backgrounds, or other non-informative images.
Use Headings in a Hierarchy
As you know, web pages have headings. Those headings are coded as different heading “levels” such as H1, H2, H3, and so on. The WCAG requires that heading levels be in order. Like with an outline, you can’t skip levels.
In other words, there should be one and only one H1 heading. Below that could be one or more H2 headings. Below any H2 could be one or more H3 headings, and so on. But you can’t skip a heading level (ie, go from H2 to H5). So that means this would be okay: H1, H2, H3, H2, H2, H3, H4. But this would not be OK: H2, H1, H3, H2, H4… and so on.
Those who can’t see also can’t use a mouse, because they cannot see the mouse pointer. So users should be able to navigate the entire site with Keyboard Only, including menus, headings, forms, buttons, and links.
Text needs to have at least a 4.5 to 1 color contrast against background colors so that those with low vision or color blindness can read all text.
Flashing animations must be stoppable, so they don’t provoke seizures in epileptics and others.
Videos need closed captions so deaf people can know what is said or heard.
All the above also apply to mobile phones and tablets.
As I mentioned before, there are almost 80 different WCAG guidelines, so this is nowhere near a comprehensive list. But making these changes to your website is a good start towards making your website more usable to those with disabilities, and just a little less likely to be threatened with a lawsuit.
To make your website more fully WCAG compliant, consult a web designer experienced in building ADA Compliant websites to remediate your website. Alternatively, consider rebuilding your website entirely with new technology and according to the WCAG guidelines.
Disclaimer: This article is a discussion of technical and industry information. The author is not an attorney and is not offering legal advice. If you have any legal questions based on what you learn here, you should talk to your attorney.
About the Author
Mark Widawer has been a web developer since 2001 and is the founder of Web Compliance Pro®, a business that focuses on website ADA and privacy compliance. He is an expert and speaker on website compliance issues, including the ADA, GDPR, and CCPA for businesses. Visit https://WebCompliancePro.com/bkh for more information and for information on how your business may qualify for a website ADA tax credit.