On April 8, 2024, the Department of Justice (DOJ) published a historic press release announcing new digital accessibility regulation under Title II of the Americans with Disabilities Act (ADA). The DOJ provided an advance copy of the Final Rule which set WCAG 2.1 AA as the legal standard for websites, mobile apps, and other web content including social media and documents.
However, Title II applies to state and local governments and associated public entities (public schools, public transportation, emergency services like police and fire departments, public hospitals and health care services, courts, various offices, and other public programs and services). Title II does not apply to private entities.
Title III prohibits discrimination on the basis of disability and requires places of public accommodation (which includes most private entities such as small businesses, companies, non-profits, etc.) to provide access.
And yet, while we have a newly published update to Title II, there is still no regulation that explicitly states how private entities are to make their websites, mobile apps, and other web content accessible.
Nevertheless, the DOJ’s stance has been that the ADA does apply to the digital world and plaintiffs’ lawyers have continually sued website owners over accessibility for several years.
While Title II regulation certainly helps us preview what to expect in upcoming Title III regulation – and may even impact court decisions in the current legal landscape – we must still look to the outdated, general Title III text to determine what the law is for private entities.
As a general rule, Sec. 12182 (a) states, Prohibition of discrimination by public accommodations under Title III of the ADA:
No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.
ADA.gov
Section. 12182 (b)(2)(A)(iii) also states:
a failure to take such steps as 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, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden;
ADA.gov
This subsection leads to the Code of Federal Regulations (CFR) effective communication requirement under 28 CFR § 36.303(c)(1):
A public accommodation shall furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities. This includes an obligation to provide effective communication to companions who are individuals with disabilities.
eCFR.gov
So, generally, these legally excerpts require that:
So, in theory, a website could either be considered the place of public accommodation itself, or it could be viewed as an auxiliary aid necessary for ensuring effective communication.
If a court were to interpret the ADA to apply to a website in either circumstance, the website owner or operator could potentially be found in violation of the ADA.
Although neither this excerpt nor any other part of the ADA explicitly mandates the accessibility of modern digital technology, nor specifies guidelines for making such technology compliant, the Department of Justice (DOJ) has adopted the stance that the ADA does indeed apply to websites.
Although Title II of the ADA applies to state and local governments and thus isn’t directly applicable to private entities (unless you are contracting with a public entity to provide services, etc.), the new web accessibility rule does have a fair degree of relevance given that there is still no updated regulation for Title III.
The new Title II rule generally requires WCAG 2.1 AA conformance with some exceptions for specific content and an allowance for minor nonconformance with the technical standards. Our ADA Title II Web Accessibility Guide explains all of the requirements, details, and exceptions in the new web accessibility rule. You can also learn more about how private entities are potentially covered.
To what extent the new Title II rule impacts the current legal landscape for Title III litigation as well as state laws such as the California Unruh Civil Rights Act and the New York State Human Rights Law remains to be seen. There are strong arguments that can be made by both defense attorneys and plaintiffs’ law firms.
| Title | Scope | Examples |
|---|---|---|
| Title I | Employment | Employers with 15+ employees, state/local governments |
| Title II (A) | State and Local Government | Public education, transportation, healthcare |
| Title II (B) | Public Transit Systems | Bus services, rail systems |
| Title III | Public Accommodations | Restaurants, hotels, retail stores |
| Title IV | Telecommunications | Telephone services for hearing/speech disabilities |
| Title V | Miscellaneous Provisions | Prohibits retaliation, legal guidance |
For many years, people thought they were exempted from ADA compliance because a snippet of Title I showed up first in the search results and Title I only required compliance if your organization had 15 or more employees. But this is why it’s so important to know about each of the titles under the ADA. Let’s summarize each title straight from the source, ADA.gov’s Introduction to the Americans with Disabilities Act page.
Applies to: employers that have 15 or more employees, including state/local governments, employment agencies, and labor unions.
General requirement: Employers must provide people with disabilities an equal opportunity to benefit from the employment-related opportunities available to others. This includes things like recruitment, hiring, promotions, training, pay, and social activities.
The ADA includes specific requirements for employers to ensure that people with disabilities have equal access to employment. Learn more about these requirements on the Equal Employment Opportunity Commission’s guidance for employers.
Applies to: all services, programs, and activities of state and local governments.
Examples of state and local government activities include:
The ADA applies to state and local governments even if:
General requirement: State and local governments must provide people with disabilities an equal opportunity to benefit from all of their programs, services, and activities.
The ADA contains specific requirements for state and local governments to ensure equal access for people with disabilities. Learn about these requirements in the State and Local Government Primer.
Applies to: public transit systems.
General requirement: Public transit systems must provide people with disabilities an equal opportunity to benefit from their services.
Note: Private transit systems are also covered by the ADA. For more information, see the section Businesses that are open to the public below.
Applies to:
General requirement: Businesses must provide people with disabilities an equal opportunity to access the goods or services that they offer.
The ADA contains specific requirements for businesses that are open to the public. Learn more about these requirements: ADA Primer for Small Businesses.
Applies to: telecommunication companies.
General requirement: Telephone companies must provide services to allow callers with hearing and speech disabilities to communicate.
The ADA also includes other requirements for how to implement the law. Examples of these requirements include:
Most website owners are practically required to make their website ADA compliant because otherwise plaintiffs’ lawyers may target them in litigation. However, technically, under Title III of the ADA, there are no specific requirements for website owners.
Because most website owners concerned with ADA website compliance are primarily concerned with Title III of the ADA, let’s go into the specifics of the law.
As the language clearly indicates, Title III of the Americans with Disabilities Act applies to places of public accommodation. But what is a place of public accommodation?
Section 12181. Definitions provides 12 categories with several of places of public accommodation.
(7) Public accommodation
The following private entities are considered public accommodations for purposes of this subchapter, if the operations of such entities affect commerce
(A) an inn, hotel, motel, or other place of lodging, except for an establishment located within a building that contains not more than five rooms for rent or hire and that is actually occupied by the proprietor of such establishment as the residence of such proprietor;
(B) a restaurant, bar, or other establishment serving food or drink;
(C) a motion picture house, theater, concert hall, stadium, or other place of exhibition entertainment;
(D) an auditorium, convention center, lecture hall, or other place of public gathering;
(E) a bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment;
(F) a laundromat, dry-cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a health care provider, hospital, or other service establishment;
(G) a terminal, depot, or other station used for specified public transportation;
(H) a museum, library, gallery, or other place of public display or collection;
(I) a park, zoo, amusement park, or other place of recreation;
(J) a nursery, elementary, secondary, undergraduate, or postgraduate private school, or other place of education;
(K) a day care center, senior citizen center, homeless shelter, food bank, adoption agency, or other social service center establishment; and
(L) a gymnasium, health spa, bowling alley, golf course, or other place of exercise or recreation.
ADA.gov
The two named entity exemptions under Title III are religious organizations such as churches and private clubs.
Specific requirements must be met. Charging membership/annual fees does not automatically mean the business is exempt.
One common misconception is that small businesses with less than 15 employees are exempt from ADA compliance. This originates from the 15 employees or more threshold from Title I of the ADA but does not apply to Title III.
Further, Non-profits are also not exempt from the ADA.
For more information on who the Americans with Disabilities Act applies to, read the Businesses That Are Open to the Public page on ADA.gov.
The DOJ is the regulatory and enforcement agency behind Title II and Title III of the ADA. Thus, the DOJ is the authoritative agency who is looked to for guidance.
The DOJ’s Guidance on Web Accessibility and the ADA sets out their stance on ADA website compliance and states:
Businesses and state and local governments have flexibility in how they comply with the ADA’s general requirements of nondiscrimination and effective communication. But they must comply with the ADA’s requirements.”
The Department of Justice does not have a regulation setting out detailed standards, but the Department’s longstanding interpretation of the general nondiscrimination and effective communication provisions applies to web accessibility. 1
Businesses and state and local governments can currently choose how they will ensure that the programs, services, and goods they provide online are accessible to people with disabilities.
ADA.gov
Here the DOJ is stating that businesses must comply with the ADA but they have flexibility in how they comply.
While flexibility in compliance sounds like a good thing, the problem is plaintiffs’ lawyers have taken advantage of this ambiguity because it means that they too, have flexibility in deciding whether a website is not ADA compliant.
Although the Department of Justice (DOJ) has not explicitly stated how to make a website ADA compliant, they have initiated a number of private enforcement actions concerning digital accessibility that have resulted in settlements.
Entities that have settled with the DOJ include:
There were numerous mandates in every consent decree and settlement, but the ultimate theme was the DOJ stipulated the entity must make their digital asset WCAG conformant and post a conspicuous accessibility statement (notice) on their website.
In recent settlements, the DOJ required WCAG 2.1 AA conformance. As mentioned previously, version 2.1 was current until October of 2023, when WCAG 2.2 was officially released.
Because the DOJ is the regulatory and enforcement agency behind Title II and Title III, these settlement requirements along with the newly published Final Rule for Title II are the best guidance possible.
As such, the best practices for ADA website compliance are WCAG 2.1 AA conformance (or 2.2) and posting an accessibility statement (with contact information for support).
The actual legal standard for ADA compliance is the meaningful access standard.
William Goren, one of the foremost authorities on the ADA and the Rehabilitation Act of 1973, explains the meaningful access standard in a JDSupra article:
The term “meaningful access,” as a legal standard comes from Alexander v. Choate, 469 U.S. 287, 301-302 (1985) where the court said that persons with disabilities are entitled under §504 of the Rehabilitation Act, to meaningful access to a State’s programs, benefits, and activities. Since the ADA and the Rehabilitation Act get interpreted the same way, that standard has carried over to the ADA.
JDSupra.com
Of course, when we ask what constitutes a meaningfully accessible website, we arrive back at a general standard where the technicalities can be argued.
Because technical arguments are quite expensive to litigate in court, it is best to preempt ADA website compliance litigation altogether by following best practices set out in this guide.
The Web Content Accessibility Guidelines (WCAG) are technical standards for web accessibility that provide direction on how to make a website (or other web asset) accessible to people with disabilities.
WCAG is authored by the Web Accessibility Initiative (WAI) of the World Wide Web Consortium (W3C), the main international standards organization for the World Wide Web.
Although WCAG is not the law, it is frequently referenced as a basis for determining whether or not a website is accessible. Some laws, including Section 508 of the Rehabilitation Act of 1973 and the Accessibility for Ontarians with Disabilities Act (AODA), have incorporated WCAG 2.0 AA into the law.
There are four versions of WCAG (1.0, 2.0, 2.1, 2.2) and three conformance levels (A, AA, AAA). Because AAA is extremely strict, level AA conformance is the defacto conformance level referenced.
| Version | Publication Year | Description |
|---|---|---|
| WCAG 1.0 | 1999 | First version, foundational guidelines for web accessibility. |
| WCAG 2.0 | 2008 | Classic version providing a strong baseline for accessibility. |
| WCAG 2.1 | 2018 | Adds 12 additional success criteria to 2.0 AA, including mobile considerations. |
| WCAG 2.2 | 2023 | Current version with 6 success criteria added to 2.1 AA. |
Version 2.0 is best viewed as the classic version. It was published in 2008 and
provides a strong baseline for accessibility.
Version 2.1 was published in 2018 and includes key mobile
considerations.
Version 2.2 was published in 2023 and is the current version.
Each successive version adds success criteria, or accessibility requirements necessary for conformance, to the previous version.
Another way to think of success criteria is as things to do to make your website more accessible.
Some examples of success criteria include:
Although an extremely useful reference, the Web Content Accessibility Guidelines are also extremely technical and are difficult to understand – even for people with a web development background. Our WCAG checklist page includes a guide and a checklist for WCAG 2.1 AA and 2.2 AA. Continuing, let’s go over what the very technical success criteria mean in practical application.
Here is a list of the WCAG 2.1 AA success criteria in practice. The more your website incorporates these considerations, the more accessible it will be. Once your website is fully WCAG 2.1 AA conformant, you will follow best practice for Title III ADA compliance (already required under the new Title II web accessibility rule).
| Success Criterion (AA) | Requirement | Why It Matters | WCAG Reference |
|---|---|---|---|
| Non-text Content | Ensure all non-text content offers a text alternative that serves the equivalent purpose. | Provides access to information in non-text content for screen reader users and others who cannot see the content. | 1.1.1 |
| Audio-only and Video-only (Prerecorded) | Provide an alternative to prerecorded audio and video content. | Ensures users who cannot hear or see the video can still access the information. | 1.2.1 |
| Captions (Prerecorded) | Provide captions for videos with audio. | Helps deaf or hard-of-hearing users access the audio content in videos. | 1.2.2 |
| Audio Description or Media Alternative (Prerecorded) | Provide audio descriptions for the prerecorded video content. | Assists users who are blind or have low vision in understanding visual content. | 1.2.3 |
| Captions (Live) | Provide captions for all live audio content in synchronized media. | Enables users who are deaf or hard of hearing to access live presentations and broadcasts. | 1.2.4 |
| Audio Description (Prerecorded) | Provide audio description for all prerecorded video content in synchronized media. | Enables users who are blind or visually impaired to receive the information contained in the visual track of a video. | 1.2.5 |
| Info and Relationships | Ensure that information, structure, and relationships conveyed through presentation can be programmatically determined or are available in text. | Helps users with assistive technologies understand structured information and relationships within content. | 1.3.1 |
| Meaningful Sequence | Ensure that the presentation of content is in a meaningful order. | Facilitates accessibility by ensuring that content is presented in a logical sequence, aiding comprehension and navigation. | 1.3.2 |
| Sensory Characteristics | Instructions for understanding and operating content do not rely solely on sensory characteristics of components such as shape, size, visual location, orientation, or sound. | Prevents reliance on sensory characteristics which may not be perceivable by all users, ensuring content is accessible to more people. | 1.3.3 |
| Use of Color | Do not use color alone to convey information. | Ensures information is available to those unable to perceive color, including users with color vision deficiencies. | 1.4.1 |
| Audio Control | Provide control for any audio that plays automatically for more than 3 seconds. | Allows users to control audio that could interfere with assistive technology or be disruptive. | 1.4.2 |
| Contrast (Minimum) | Text and images of text have a contrast ratio of at least 4.5:1, except for large text, incidental text, or logotypes. | Ensures text is readable by people with moderately low vision or color deficiencies. | 1.4.3 |
| Resize Text | Text can be resized up to 200% without loss of content or functionality. | Helps users with visual impairments read text more easily without the need for assistive technology. | 1.4.4 |
| Images of Text | Text is used to convey information rather than images of text, except when the image of text is essential or can be visually customized to meet user needs. | Ensures information is easier to read and can be adapted by assistive technologies. | 1.4.5 |
| Keyboard | All functionality of the content is operable through a keyboard interface without requiring specific timings for individual keystrokes. | Key for users who cannot use a mouse and rely on keyboard navigation. | 2.1.1 |
| No Keyboard Trap | If keyboard focus can be moved to a component of the page, it can be moved away from that component using only a keyboard. | Prevents users from being stuck in a part of the webpage without a way to navigate away using the keyboard. | 2.1.2 |
| Timing Adjustable | For each time limit that is set by the content, the user can turn off, adjust, or extend the limit. | Critical for users who need more time to read or use content due to disabilities. | 2.2.1 |
| Pause, Stop, Hide | For moving, blinking, scrolling, or auto-updating information, users have a mechanism to pause, stop, or hide it unless it’s essential. | Prevents distractions and allows users with attention disorders or visual impairments to better interact with the site. | 2.2.2 |
| Three Flashes or Below Threshold | Web pages do not contain anything that flashes more than three times in any one second period. | Reduces the risk of seizures caused by strobe or flashing effects. | 2.3.1 |
| Bypass Blocks | A mechanism is available to bypass blocks of content that are repeated on multiple pages. | Facilitates navigation and access to content by making it easier for users to skip repetitive content. | 2.4.1 |
| Page Titled | Web pages have titles that describe topic or purpose. | Assists users in locating and navigating to the desired content, especially important for those with cognitive disabilities. | 2.4.2 |
| Focus Order | If a web page can be navigated sequentially, the navigation sequences affect meaning or operation. | Ensures that users who rely on assistive technologies and keyboard navigation can use the site effectively. | 2.4.3 |
| Link Purpose (In Context) | The purpose of each link can be determined from the link text alone or from the link text together with its programmatically determined link context. | Helps users understand where a link will take them before clicking, crucial for those with cognitive disabilities. | 2.4.4 |
| Multiple Ways | More than one way is available to locate a webpage within a set of webpages except where the webpage is the result of, or a step in, a process. | Improves accessibility by providing multiple methods of navigation, beneficial for users with different preferences or disabilities. | 2.4.5 |
| Headings and Labels | Headings and labels describe topic or purpose. | Aids in content organization and navigation, especially helpful for users with cognitive limitations. | 2.4.6 |
| Focus Visible | Any keyboard operable user interface has a mode of operation where the keyboard focus indicator is visible. | Essential for keyboard users to know which element has the keyboard focus. | 2.4.7 |
| Language of Page | The default human language of each webpage can be programmatically determined. | Helps software identify the language to present content correctly, crucial for screen readers and other assistive technologies. | 3.1.1 |
| On Focus | When any component receives focus, it does not initiate a change of context. | Prevents unexpected changes on the page, which can disorient users, especially those with visual or cognitive disabilities. | 3.2.1 |
| On Input | Changing the setting of any user interface component does not automatically cause a change of context unless the user has been advised before using the component. | Ensures that changes on the page resulting from user actions are predictable, vital for users with cognitive and visual disabilities. | 3.2.2 |
| Consistent Navigation | Navigational mechanisms that are repeated on multiple pages within a set of webpages occur in the same relative order each time they are repeated, unless a change is initiated by the user. | Consistency in navigation aids users in learning and understanding navigation, important for those with cognitive disabilities. | 3.2.3 |
| Consistent Identification | Components that have the same functionality within a set of webpages are identified consistently. | Helps users recognize recurring UI elements easily, crucial for those relying on assistive technologies. | 3.2.4 |
| Error Identification | Errors made by the user are automatically detected and identified in text, allowing the user to correct them. | Facilitates error correction, particularly important for users with cognitive or learning disabilities. | 3.3.1 |
| Labels or Instructions | Labels or instructions are provided when content requires user input. | Supports users in completing tasks by clarifying what is needed, critical for users with cognitive disabilities. | 3.3.2 |
| Error Suggestion | When an input error is automatically detected, suggestions for correction are provided, if known. | Helps users recover from errors by providing solutions, reducing frustration especially for those with cognitive disabilities. | 3.3.3 |
| Error Prevention (Legal, Financial, Data) | For web pages that cause legal commitments or financial transactions to occur, that modify or delete user-controllable data, or that submit user test responses, the user is able to review, correct, and confirm before finalizing the submission. | Reduces the chance of errors in transactions that could have serious consequences, important for all users, particularly those with cognitive impairments. | 3.3.4 |
| Parsing | Elements must have complete start and end tags, elements must be nested according to their specifications, elements must not contain duplicate attributes, and any IDs must be unique. | Ensures that assistive technologies can accurately interpret and parse content. | 4.1.1 |
| Name, Role, Value | For all user interface components, the name and role can be programmatically determined; states, properties, and values that can be set by the user can be programmatically set; and changes to these items are notified to the user. | Supports technology that relies on this information to provide appropriate accessible user interfaces. | 4.1.2 |
What many people don’t realize is many accessibility considerations that are traditionally thought of as necessary for conformance are more appropriately categorized as sufficient or advisory techniques.
This is because websites can conform to many success criteria in multiple ways. To be thorough, let’s cover sufficient and advisory techniques so you have a better understanding of what it takes to be conformant.
Sufficient techniques are reliable ways to meet the success criteria.
For example, success criterion 2.4.1 Bypass Blocks is commonly associated with the skip navigation or skip to content link, but 2.4.1 can be satisfied with correctly structured headings or by having landmarks in place.
A mechanism is available to bypass blocks of content that are repeated on multiple Web pages.
W3.org
Note that the only requirement is that there is a mechanism available to bypass blocks – 2.4.1 doesn’t necessitate what mechanism.
Advisory techniques are suggested ways to improve accessibility, but they aren’t sufficient for full conformance by themselves for a number of reasons.
For example, success criterion 1.4.4 Resize Text requires:
Except for captions and images of text, text can be resized without assistive technology up to 200 percent without loss of content or functionality.
W3.org
An advisory technique for 1.4.4 (and 1.3.1) is to use CSS to control visual presentation of text.
Although insufficient for full conformance with 1.4.4, this will allow users to modify, via the user agent, the visual characteristics of the text to meet their requirement. Thus, it is a consideration to optimize for accessibility.
Clearly WCAG can get quite technical but the important takeaway is these technical standards are a tremendously helpful reference point.
These success criteria and many others cover critical aspects of web accessibility so we can ensure that people with various disabilities can access our website.
When many people search for an ADA website compliance checklist, they are actually looking for a checklist of WCAG success criteria.
When we follow WCAG 2.1 AA technical standards, it has a tremendous positive impact on access to our digital experiences for people with disabilities. Here are the primary disabilities that the Web Content Accessibility Guidelines take into account and how WCAG 2.1 AA conformance helps ensure access.
| Disability | Description | WCAG 2.1 AA Accommodation |
|---|---|---|
| Blindness | Cannot see content | Provide text alternatives, screen reader support, keyboard navigation |
| Color Blindness | Difficulty distinguishing colors | Use text labels or patterns, avoid reliance on color |
| Low Vision | Significant visual impairment | Magnify text, high contrast modes, simple layouts |
| Deafness | Cannot hear audio content | Provide captions, transcripts, visual indicators |
| Hard of Hearing | Difficulty distinguishing audio details | Provide captions, adjustable volume controls |
| Difficulty or Inability to Use a Mouse | Conditions like tremors, paralysis | Keyboard navigation, speech recognition, alternatives for gestures |
| Slow Response Time | Longer time needed for responses | Allow more time for tasks, avoid quick responses |
| Limited Fine Motor Control | Difficulty with precise mouse control | Larger clickable areas, touch gestures |
| Distractibility | Conditions like ADHD | Distraction-free mode, control moving/flashing elements |
| Difficulty Remembering or Focusing | Challenges with large amounts of information | Simplify navigation, clear cues, save progress |
| Dyslexia | Reading difficulties | Clear, well-spaced text, alternatives to text, sans-serif fonts |
| Other Learning Disabilities | Challenges with math, spatial relationships, language | Interactive methods, choose information format |
In sum, WCAG is extremely helpful when it comes to improving the accessibility of our website and ensuring access to people with a wide range of disabilities. And access is ultimately what ADA website compliance comes down to – although this can get lost amidst the serial litigation that takes place.
Most website owners find out about ADA compliance for websites through a demand letter or lawsuit or from a peer who has already been sued.
There are literally thousands of complaints concerning website accessibility filed in state and federal court every year. It’s estimated that tens of thousands of disputes are settled privately before ever becoming public record.
ADA website lawsuit filing numbers have leveled off in 2024, but litigation is still going strong and may be even more prevalent than the numbers suggest. Much of website accessibility litigation is resolved privately after a demand letter is sent so the true extent of litigation is unknown.
There are approximately 40 active plaintiffs’ law firms in ADA website compliance litigation. Some of the most active law firms are:
These firms usually initiate litigation on behalf of a plaintiff who is blind or visually impaired. The general claims asserted typically revolve around existing accessibility issues on the website creating a barrier to access.
Following, these issues are tantamount to intentional discrimination on the part of the defendant website owner/operator. Thus, the law firm contends that the defendant is in violation of the law and their client is entitled to relief and/or damages.
Plaintiffs law firms often apply the Web Content Accessibility Guidelines very strictly against websites, with technical non-conformance on a number of success criteria, opening the possibility of litigation.
The top three issues claimed in litigation involve:
Many plaintiffs lawyers use automated accessibility scans to find issues. Popular scans used by lawyers include:
However, a growing trend is for plaintiffs lawyers to contract with accessibility experts to test websites and find issues beyond what automation can detect.
To learn exactly how to find and fix the most commonly claimed issues in litigation, we highly recommend our ADA Compliance Course.
The bulk of ADA website compliance lawsuits take place in:
Both in state and federal court. New York federal courts are in the 2nd circuit, California federal courts are in the 3rd circuit, and Florida federal courts are in the 11th circuit.
The Americans with Disabilities Act isn’t the only law that plaintiffs lawyers name as a cause of action. Other general anti-discrimination laws may come into play.
In California, the Unruh Act is commonly named. In New York, the New York State Human Rights Law (NYSHRL) and New York City Human Rights Law (NYCHRL) are also frequently cited.
The vast majority of cases are settled privately and the actual settlement amounts for ADA website lawsuits vary based on a number of factors including:
Cases in New York typically have the highest settlement amounts. In general, ADA website litigation usually settles for between $5,000 and $20,000.
A website that is conformant with WCAG 2.1 AA technical standards and has an accessibility statement is considered ADA compliant. The legal standard under Title III of the ADA is meaningful access, but it is unclear when meaningful access has been provided so WCAG 2.1 AA conformance is best practice.
Many people want examples of what an ADA compliant looks like, but an accessible website doesn’t have to look different than it currently does. The are only slight appearance changes that may need to take place (e.g., updating color contrast) and you wouldn’t even know that the changes were for a reason because an accessible website doesn’t have to look any certain way.
For example, the following list of popular websites can all be made WCAG 2.1 AA conformant:
Note that user-generated content, when inaccessible, would create accessibility issues outside of the framework of these websites.
Let’s breakdown how to make your website ADA compliant by starting with the two pillars:
However, it’s important to note that making your website fully WCAG conformant can take several weeks, if not several months.
And when most website owners seek to make their website ADA compliant, their primary concern is practical, not technical compliance: how do I avoid getting sued over website accessibility?
The best path forward is to strategically prioritize and fix the 15 accessibility issues plaintiffs lawyers claim the most and then continue with WCAG conformance.
The ADA Compliance Course is specifically designed to help website owners train their digital teams on exactly how to prioritize and immediately find and fix these issues.
With that first step in mind, let’s cover how to make a website fully WCAG conformant.
An ADA website compliance audit, or more technically a website accessibility audit, is a formal, manual evaluation of a website’s accessibility conducted by a technical accessibility expert. Essentially, during an audit, a website is being graded against the Web Content Accessibility Guidelines (WCAG) and any accessibility issues are documented and included in the audit report.
While scans and other tools are commonly used during the audit process, the audit results must always be the result of manual review. Our ADA Website Compliance audit guide will help you learn more about purchasing an audit and how everything looks when it goes perfectly.
During an audit, one or more technical experts will inspect elements, content, and code. Experts will also interact with and test the website using a keyboard and at least one screen reader.
Also, although an audit, optimally, tells the website owner all accessibility issues that reside on the website, no issues are fixed as the result of an audit.
Audits usually cost between $2,500 and $7,500 for most websites.
The price will depend on several factors including:
Environment combinations may include:
Remediation is the process of fixing accessibility issues on a website.
Issues that involve images, video, audio, and text can typically be remediated by someone who is non-technical but familiar with the accessibility measures necessary. For example, adding closed captions and audio descriptions to video.
Issues that involve code are often technically complex and require someone with development experience to resolve the issue. For example, most web designers will not know when and how to add appropriate ARIA roles and attributes. ARIA stands for Accessible Rich Internet Applications.
Once remediation has been completed, a website should be, in theory, WCAG conformant (at least for the scope of the audit and remediation).
Remediation costs usually start at $2,500 and vary based on the volume of issues and complexity. This cost can be lower if the provider who audits is also responsible for remediation, but most accessibility companies do not offer remediation services for fear of liability.
Of course, it’s always best to audit post-remediation to ensure that all issues have been resolved and no oversights or errors have been made. This is referred to as the re-audit phase. Accessible.org audit services always include a secondary audit because ADA website compliance requires attention to detail and we want to ensure that we use a multiple filter approach to catch all issues.
If conducted by the original auditing provider, a re-audit is often a fraction of the cost of the original audit.
User testing is the testing of a website or other digital asset conducted by an accessibility professional with one or more disabilities. The testing is conducted under formal settings and usually includes the use of assistive technology such as a screen reader or voice dictation software.
Although similar in that a primary objective is to uncover any accessibility issues, user testing is distinct from an audit in that user testing is much more concerned with a user’s practical experience vs. technical instances of non-conformance with WCAG.
User testing will result in some form of documentation. This may be a written report and/or a recording of the user testing session.
Re-audits and user testing are both recommended additions to any website accessibility project because they act as a multi-tier net to help filter out and catch accessibility issues that were not initially detected.
User testing documentation provides excellent, tangible evidence that your website should be considered ADA compliant and is always a best practice for ADA website compliance.
Unfortunately for consumers who are trying to learn what is necessary for an ADA compliant website, there are many accessibility vendors who attempt to mislead them into unnecessary or undesirable products and services that provide little to no value and don’t prevent lawsuits.
Widgets, also commonly referred to as plugins or toolbars, are highly marketed as “solutions” for website accessibility and ADA compliance, but the widget makers are known for making false claims (e.g., the widgets prevent lawsuits). Also, hundreds of accessibility professionals have spoken out against their efficacy and vowed never to install or recommend overlays.
If a user activates and selects settings, overlay widgets can render superficial adjustments like zoom, color contrast, highlights, and font changes but these adjustments literally lay over the website and do not fundamentally make the website accessible (because manual code and content remediation is necessary).
While automated scans can be quite helpful in returning instant results, virtually all of the value from scans can be accessed for free. Free scans include:
WAVE is the most popular scan and is both intuitive and educational. AXE is more technically advanced and partially flags a few more issues than WAVE. AXE can reliably detect as many issues as any other paid scan.
But many companies attempt to portray their premium scans as a necessary subscription by featuring:
While these features are seemingly useful and the automated aspect is quite appealing, in practice the benefit is nominal for the premium add-ons.
Also, companies selling scans have a tendency to inflate their capabilities. While helpful, scans are extremely limited in how many issues they can reliably flag (approximately 25% of WCAG 2.1 AA issues). In fact, most companies never reveal how problematic false negatives (where scans return no errors but issues exist) can be.
Though it is a complete misnomer, many website owners now mistakenly refer to scans as ADA website compliance checkers even though scans can’t reliably flag the overwhelming majority of accessibility issues.
Another type of overlay in the accessibility industry is called a custom overlay.
With custom overlays, an accessibility company custom makes an overlay specifically for a website, with JavaScript making targeted fixes. There is no menu of adjustment options, but the overlay will still need to be activated or enabled for the adjustments to take place.
Although a clear step above overlay widgets, custom overlays are still weak products for making a website accessible because they do not fundamentally remediate the code or the content and still require users to activate them and/or know to activate them.
And this means plaintiffs’ lawyers may disregard them just like they do overlay widgets.
Also, custom overlays are prone to malfunction, especially during code updates. This necessitates cautious handling by developers, as small changes can disrupt their functionality. Such fragility requires continuous maintenance, highlighting their instability as a dependable accessibility solution
At best, custom overlays provide a semblance of doing “something” for accessibility; optimistically, they might be thought of as a temporary “stopgap” by some buyers.
Given the practical and technical cons along with the tremendous expense, custom overlays are bad values.
We created a guide specifically for Shopify ADA Compliance because website owners on the ecommerce platform are by far the group that is sued the most. In fact, most of our clients are Shopify store owners.
Although Shopify hasn’t gone to special lengths to ensure out-of-the-box accessibility, there’s nothing inherently wrong with the Shopify platform. One huge plus is Shopify provides for full code access.
The good news is there are many resources that can help you make your website accessible and follow best practices for compliance.
| Resource | Description | Features |
|---|---|---|
| WCAG 2.1 AA Checklist and Guide | Plain English explanation of WCAG 2.1 AA | Free download on Accessible.org |
| WCAG 2.2 AA Checklist and Guide | Plain English explanation of WCAG 2.2 AA | Free download on Accessible.org |
| WCAG Course | Learn WCAG 2.1 and 2.2 AA quickly | Video/text explanations, downloadable cheatsheets, customizable Excel checklist |
| ADA Compliance Course | Reduce lawsuit risk and improve accessibility | Strategic approach that tells you exactly how to reduce lawsuit risk |
| Website Accessibility Services | Audit, remediation, and user testing | 100% manual services, best practices for ADA compliance |
The Accessible.org WCAG 2.1 AA checklist and guide explain the Web Content Accessibility Guidelines in plain English and are completely free to download, along with our WCAG 2.2 AA checklist and guide.
Our WCAG Course will help you learn the Web Content Accessibility Guidelines even faster. The course contains video and text explanations for every success criterion for WCAG 2.1 and 2.2 AA. The course also contains downloadable cheatsheets and a customizable WCAG checklist in Excel spreadsheet format.
Why not reduce your risk of a lawsuit as you fix accessibility issues?
Our ADA Compliance Course tells you exactly what to do, including what your strategy should be, what 15 issues to prioritize, what order to work on them, and detailed instructions on how to find and fix each issue.
Accessible.org offers the audit, remediation, and user testing services (all 100% manual accessibility services) necessary to follow best practices for ADA compliance.
Contact us to find out how we can help you with your website.
Or visit the Accessible homepage for more free resources and to learn about our done-for-you ADA compliance and website accessibility services.
Kris Rivenburgh is the founder and operator of Accessible.org. Kris is an attorney and the author of The ADA Book, the first book on ADA compliance for digital assets. With seven years of experience in digital accessibility and ADA Compliance, Kris advises clients ranging from small businesses to public entities and Fortune 500 companies.
