Direct sellers consider how to interpret ambiguous regulations
By Courtney Ronan
“If you’re going to build a commercial building, it has to have a wheelchair access ramp. Why would you build a website these days and cut off someone with a disability?”
—Josh Bennett, director of UX, LifeVantage
In October 2019, Domino’s Pizza lost a case that effectively put U.S. businesses with websites on notice. Guillermo Robles, a blind man, sued the company after he was unable to place his order on both Domino’s website and its mobile app on at least two occasions, even with the aid of screen-reading software. Robles’ attorneys argued that Domino’s was required to ensure its online platforms were accessible to individuals with disabilities and referred to Title III of the Americans With Disabilities Act (ADA), which prohibits discrimination on the basis of disabilities in places of public accommodation.
After the 9th U.S. Circuit Court of Appeals ruled against Domino’s, determining that its website and app were extensions of its brick-and-mortar stores, the company petitioned the U.S. Supreme Court, which later rejected its appeal.
Domino’s is by no means alone. The number of lawsuits filed in federal courts related to website accessibility increased nearly 200 percent from 2017 to 2018, and were recorded in every state. Retail e-commerce sites represent the highest type of website in web accessibility lawsuits: 38 percent, nearly four times the amount of the next category (food service at 11 percent). Over 600 law firms are engaged on both sides of the fight.
LifeVantage Increases Accessibility Score
LifeVantage just completed a ground-up rebuild of one of its websites, including a series of updates designed to improve the site’s accessibility. Senior UX Developer Lucas Ackley and his team employed such WCAG criteria as alt text for images and non-text content; visual hierarchy, or content organization that follows natural eye movement; and the use of a screen reader, which allows users to listen to content and use their keyboards without a mouse. Ackley’s team also provided training for other employees who create and upload content to ensure they understood how to follow best practices for accessibility. Collectively, these efforts increased the site’s accessibility score from 70 percent to 98 percent.
The definition of “compliance” is rather vague and has been loosely interpreted, contributing to the problem. Companies are left with two choices: wait it out until litigation forces the issue, or get a jumpstart on modifications that could ultimately provide a competitive advantage. Currently, people with disabilities comprise 26 percent of the American public, according to the Centers for Disease Control and Prevention (CDC).
ADA and the Internet
President George H. W. Bush signed the ADA into law on July 26, 1990, which effectively prohibited private places of public accommodation from discriminating against individuals with disabilities. The term “public accommodation” includes everything from privately owned, leased or operated doctors’ offices, private schools, movie theaters, hotels, restaurants, and retail stores to sports stadiums and facilities, office buildings, and transportation. ADA is divided into five sections, or titles, that pertain to various aspects of public life.
One seemingly overt omission from the ADA and its amendments, however, is the World Wide Web. In 1990 when ADA first became law, the internet was nowhere near as ubiquitous as it is today. It wasn’t opened to the public until a year later, when e-commerce took its first steps.
The U.S. Department of Justice (DOJ) published Accessibility of State and Local Government Websites to People with Disabilities in 2003, to provide state and local governments with suggestions for making their websites accessible, which falls under Title II of the ADA for nondiscrimination on the basis of disability in state and local government services. Public places, which fall under Title III, were not included.
In 2010, by the time the internet was widely available and a central part of most Americans’ lives, the DOJ issued an Advanced Notice of Proposed Rulemaking, which announced its intent to amend Title III of the ADA so as to include public website accessibility for individuals with disabilities. Since then, the DOJ has brought its case to several courts, but to date no law has yet been passed for public website accessibility.
Some have argued that retailers who offer an ADA-compliant brick-and-mortar store already offer reasonable accommodation and therefore aren’t subject to website regulation, while others have maintained that websites, being virtual stores, should play by the same rules as any brick-and-mortar retailer.
While Title III doesn’t mention websites anywhere, that hasn’t stopped U.S. courts from applying it to the web. In 2018, more than 2,200 lawsuits were filed in federal courts over public website accessibility, a 181 percent increase over 2017, according to accessibility technology firm UsableNet. New York and Florida represented 96 percent of total filings in 2018, but defendants came from throughout the United States.
Seyfarth Shaw LLP projected a total of 2,408 lawsuits would be filed in federal courts by the end of 2019, representing a 7 percent increase over 2018.
“If you want to get technical, there is no black letter law that says websites must be ADA compliant. However, that’s not a debate you want to have in district court,” says Kris Rivenburgh, founder of Accessible.org, attorney and author of The ADA Book, in an October 2019 blog post, “The ADA Checklist: 2019-2020 Compliance Guidelines to Make Your Website Accessible.” However, Rivenburgh says multiple authorities have stated that private entities have flexibility in how they choose to make their websites accessible.
The Web Content Accessibility Guidelines (WCAG), produced by the World Wide Web Consortium (W3C), have come the closest to establishing a set of standards that constitute website accessibility. Although not definitive, WCAG has been internationally recognized and cited by the U.S. courts. The guidelines have been periodically updated over the years—the most recent iteration, Level AA 2.1, became official June 5, 2018.
In the absence of an explicit law, it gives companies a good place to start with a series of “success criteria” that may be used to gauge site usability—for example, color contrast, website structure, audio control, text resize, keyboard-only function, clear and unique page titles, and adjustable time. According to Rivenburgh, companies that don’t meet every criteria don’t necessarily have an inaccessible site. Organizations that strive to conform to standards can make strides toward inclusiveness and potentially steer clear of litigation.
Step 1 toward better site accessibility is simply knowing where you stand. Sean Bradley is co-founder, president and chief strategy officer of AudioEye, a company that uses machine learning and artificial intelligence to analyze and dynamically manipulate clients’ web content for better accessibility. “Nine times out of 10, we get a phone call because somebody got served a legal demand letter or a lawsuit, and they didn’t know that ADA applying to websites was even a thing. What it comes down to is education, we call it the ‘inclusion revolution,’” says Bradley, who launched his company in 2005 after his brother learned he had a degenerative eye disease.
While companies such as AudioEye can do the heavy lifting for site adjustments, companies can conduct their own accessibility audits using such tools as Google Chrome Auditor to determine where they’re falling short. Simply attempting to navigate the site without the aid of a mouse also will give companies a good idea as to how easy or difficult it is for a disabled visitor.
As part of the modification process, Bradley recommends that website owners establish a grievance procedure so site visitors who encounter an access barrier have a mechanism to report issues and a direct interface for doing so, whether that’s sending an email, making a phone call, or submitting an accessible web form. This information is typically promoted within the accessibility statements you’ll find on some company websites—such as those found at Princess House, Jeunesse, MONAT and Nu Skin.
Mobile assets also are potentially vulnerable to lawsuits if they present access barriers. Bradley says there have been recent lawsuits filed specific to native apps. If a company is rebuilding its website, a “mobile first” will help ensure a consistent experience across the board. App designers and developers increasingly have been referring to WCAG AA 2.1 guidelines to ensure their digital assets are accessible.
According to Bradley, the expense associated with achieving and sustaining compliance varies based on the size and complexity of the website, and the approach taken to test and remediate issues. In the future, increased automation will reduce the manual component of making sites accessible and make the transition more cost-effective, he says.
Compliance isn’t a one-and-done project; it’s an ongoing process as new content is added. Getting out ahead of these challenges today can mitigate risk tomorrow.
Josh Bennett, director of UX at LifeVantage, recommends that companies looking to become more compliant read up on ADA regulations and “make it a part of how you write code every day. It’s a mindset. If you’re going to build a commercial building, it has to have a wheelchair access ramp. Why would you build a website these days and cut off someone with a disability?”
Link to share this article: https://socialsellingnews.com/link/lawsuits-target-ada-web-compliance-1358/