The coronavirus outbreak resulted in a postponement of the use of digital devices. As people around the world rely heavily on the Internet for essential information, work, school, entertainment, and basic needs such as medicines and groceries, it is clearer than ever that digital inclusion is vital. However, people with disabilities have problems staying informed, shopping and accessing essential services online due to low-contrast text and the confusion of filling out long forms without labels, as well as a number of other barriers that make the internet impossible for some people.
Countries around the world have enacted various anti-discrimination and accessibility laws that prohibit discrimination against people with disabilities in all areas of public life, including work, school, and transport. Examples of this are the Americans with Disabilities Act (ADA) and Section 508 in the United States, and the European Accessibility Act and Web Directive EN 301
Regulation of Internet Accessibility in the United States
America has around 61 million people with some form of disability – nearly 20% of the population.
Under Title III of the Americans With Disabilities Act (ADA), organizations (public and private) that provide public housing or commercial facilities must take steps to communicate effectively with customers with disabilities. The law affects accommodation, restaurants, bars, educational institutions, entertainment venues, etc. and does not have to be a physical location. Therefore, ADA Title III also requires organizations to ensure that online accommodation such as web content and other electronic information technologies are accessible by being usable for people with various types of disabilities such as visual, hearing, motor or cognitive disabilities.
So that a website can take various impairments into account, its content must be accessible via the keyboard, have text alternatives and comply with the international standard, the Web Content Accessibility Guidelines (WCAG) 2.1 Level AA. Failure to comply with the WCAG technical standards will lead to legal action. In fact, litigation has increased significantly over the past year.
The lawsuit trend in 2020?
For those who don’t follow litigation numbers, the rate of ADA-based web and app lawsuits rose from 814 in 2017 to 2,258 in 2018, an increase of 177%. They then remained roughly stable in 2019. (The Robles Pizza v Domino case remains the highlight of the year.) The majority of the cases related to claims that websites did not work with screen-reading software and did not include subtitles for video on websites. The latest WebAIM research report confirmed that violations were still widespread through February 2020: 98.1% of the home pages of the top 1,000,000 websites had identifiable WCAG 2.0 errors. This report is especially frightening when you consider that only 25% to 35% of possible WCAG compliance errors can be automatically detected by software.
While it appears that the number of website accessibility lawsuits filed decreased in the fourth quarter of 2019, the number of lawsuits filed rose again in the first three months of 2020, rising more than ever in New York, Florida and California continue on. (In California, state-filed lawsuits are filed under the Unruh Civil Rights Act.) In fact, state-filed lawsuits are now growing so fast that they are making up for the decline in state lawsuits. It’s safe to say that companies in California, New York, and Florida face double the risk of being affected by a lawsuit, according to UsableNet’s 2020 Semi-Annual Report. The Web Accessibility Service Provider reports that the number of ADA-based web and app lawsuits filed with the federal court has returned to the previous record by the end of April 2020. The report also confirmed that mobile apps accounted for 20% of these lawsuits, reflecting the increased use of mobile devices to access services, the convenience of apps, and the inclusion of mobile apps in the Domino pizza accessibility lawsuit in 2019 is due.
It is common for the ADA Title III website and app lawsuits to target retail, hospitality, and food service industries more than any other sector. Retail and food companies were hardest hit in the first six months of 2020. These companies typically have apps or websites that require frequent updates and code changes due to the constantly changing nature of the product / service.
Payouts from previous cases inevitably feed the cycle of interest in these lawsuits. In its previous report, UsableNet said 10 law firms were responsible for more than 82% of the lawsuits filed in federal court in 2018. The 2020 semi-annual report suggests that some new plaintiff law firms have joined the predatory boom.
Progress in litigation related to Internet accessibility
Although internet accessibility has been a problem for many years, many companies do not become aware of the law until they are faced with a lawsuit. Trying to ward off a lawsuit by quickly making the website conform to the WCAG 2.1 AA standard is costly and may not work. Multiple courts have denied motions to dismiss website accessibility suits based on disputes, with Haynes v Hooters of America being a highlight.
The real solution to accessibility compliance is to take the final initiative to comply with the technical standards, determine accessibility through user testing and verification, and ensure continuous compliance monitoring.
Organizations subject to ADA Title III must be willing to make their websites or apps accessible to the disabled by following the more referenced and most updated compliance goal, WCAG 2.1 AA. It’s also a good idea to have an accessibility statement on the website to guide disabled users through an alternative way to access content and to provide a 24-hour accessibility phone service to receive and respond to user feedback.
It is also a very good idea to include disabled people in user testing. Organizations should incorporate accessibility into their processes by training their IT teams and content managers to prioritize accessibility and regularly conducting internal and external third-party reviews of their digital websites.
During these COVID-19 times, digital accessibility is more important than ever. Imagine being unable to access the internet to work remotely, attend meetings, continue your education, shop, find entertainment, and maintain relationships – and have no clue as to how long you will be in this isolated state are located. It is morally important for companies to ensure that people with disabilities can benefit from their digital space like everyone else. Businesses need to respond to the unprecedented challenge of coronavirus by ensuring equal access. Otherwise, you will likely face the reality of increasing online accessibility litigation under the Americans with Disabilities Act.
Adam Akinyemi is the creator of Whois Accessible, which helps recommend effective ways to meet business accessibility requirements.