digital assets and ADA ComplainceThe Americans with Disabilities Act (ADA) requires businesses to accommodate people with physical and cognitive impairments. While the ADA, which applies to “places of public accommodation,” was designed with physical spaces in mind, the proliferation of online services means that digital spaces must also comply with the ADA. Accordingly, websites and mobile apps must be accessible to disabled individuals. Failure to comply with ADA internet accessibility guidelines can lead to fines, lawsuits, implementation costs, and loss of customers.

Complicating matters, neither the ADA nor the Department of Justice (DOJ), which enforces the ADA, has explicitly stated the specific requirements for app and web accessibility. The Web Content Accessibility Guidelines (WCAG) are recognized as the de facto source of technical standards for ADA internet compliance. With most websites failing to meet the WCAG standards, and with ADA website accessibility lawsuits on the rise, businesses are advised to address these issues—or risk facing the consequences.

Are All Websites Required to Be ADA Compliant?

ADA legislation addresses two distinct types of businesses that must accommodate people with disabilities:

  • Title I of the ADA applies to businesses that operate twenty or more hours per week and employ at least fifteen full-time employees.
  • Title III of the ADA applies to businesses that provide “public accommodation.”

Additionally, local and state government websites must be accessible under Title II of the ADA. It is worth repeating, though, that the ADA’s applicability to websites is a legal gray area. None of the Act’s updates over the years have included language to address web accessibility.

But despite the lack of formal federal prescriptions, the DOJ has affirmed that the ADA applies to websites. In 2018, the US assistant attorney general wrote, “The Department first articulated its interpretation that the ADA applies to public accommodations’ websites over 20 years ago. This interpretation is consistent with the ADA’s Title III requirement that the goods, services, privileges, or activities provided by places of public accommodation be equally accessible to people with disabilities.”[1]

The DOJ’s lack of clear rulemaking about digital accessibility has left courts and state legislatures to pick up the slack. Many—but not all—have acknowledged that online services are “places of public accommodation.” In Robles v. Domino’s Pizza, the US Court of Appeals for the Ninth Circuit ruled for the plaintiff and held that websites and mobile apps must be ADA compliant.[2] However in Gil v. Winn-Dixie stores, the Eleventh Circuit found that websites are not subject to Title III of the ADA[3]. As a result, the guidelines regarding website accessibility require careful strategy and attention to jurisdiction stances.

How Do I Implement WCAG Standards?

Even if your website is not technically required to be ADA compliant or you manage to fly under the regulatory radar, noncompliance is risky. About 20 percent of the US population has a disability,[4] but there has also been a continual shift to greater digital device usage as more people use the internet to meet basic needs and access critical services. From a compliance standpoint, digital inclusion should be the assumed norm—especially when the penalties for noncompliance are factored in.

In both DOJ enforcement actions and private ADA lawsuits heard in US district courts, WCAG conformance is typically mandated. Lacking DOJ guidance, WCAG conformance is the best way to ensure that your website is accessible to the greatest number of users. The latest version, WCAG 2.1, comes in three versions: A, AA, and AAA. Based on legal precedents, Level AA is the standard that businesses should follow for website accessibility and mobile app accessibility. This involves implementing best practices such as the following:

  • Captioning video and audio content to accommodate people who are deaf
  • Using descriptive alternative text (alt-text) that is read aloud to blind people
  • Removing or extending time limits on forms so that people who need more time are not excluded
  • Designing your site so that it can be navigated without using a mouse
  • Making sure that web pages use a heading-level structure that works with screen readers

WCAG 2.1 has seventy-eight success criteria for AAA compliance, the highest and most complex level. AA compliance involves fifty success criteria.[5] Criteria are categorized into one of four principles: Perceivable, Operable, Understandable, and Robust.

Web accessibility is a highly technical area that even experienced developers may struggle to understand and implement. You might consider hiring an independent third party to audit your website, engage in user testing, train your development team, and create a digital accessibility policy. You may also want to consult a business law attorney for help with ADA compliance matters.

What Are the Penalties for Not Complying with the ADA?

According to WebAIM, a nonprofit based at Utah State University, roughly 97–98 percent of the top one million home pages have detectable WCAG failures, although the actual number of failures is likely much higher because not all failures can be automatically detected.[6] The most common conformance failures are low-contrast text, missing alternative text for images, missing form input labels, empty links, missing document language, and empty buttons.

Having a non-compliant website or digital app can cost your business big money. Under the ADA, you could be fined up to $55,000 for the first violation and $110,000 for subsequent violations.

Arguably, the greater risk to businesses is a lawsuit that alleges violations of the ADA or similar state laws. A 2020 report from UsableNet indicates that ADA-based website and digital app lawsuits are being filed in federal court at a record-breaking pace.[7] About 20 percent of these lawsuits now involve apps, likely in response to the Domino’s Pizza case.

Court filings indicate that businesses in the retail, food service, entertainment and leisure, travel and hospitality, banking and financial, and healthcare industries are the most likely to be sued in federal ADA digital lawsuits. Such lawsuits can result in attorney’s fees, significant damage awards or settlements, and costs to implement needed changes.

[1] Letter to Senator Charles E. Grassley regarding Website Accessibility under the Americans with Disabilities Act (ADA) (Oct. 11, 2018), https://www.judiciary.senate.gov/imo/media/doc/2018-10-11%20Justice%20Dept.%20to%20CEG%20-%20Website%20Accessibility%20Under%20ADA.pdf.

[2] 913 F.3d 898 (9th Cir. 2019).

[3] No. 17-13467 (11th Cir. 2021).

[4] National Service Inclusion Project, Basic Facts: People with Disabilities, http://www.serviceandinclusion.org/index.php?page=basic (last visited Aug. 8, 2021).

[5] Essential Accessibility, The Must-Have WCAG 2.1 Checklist: Practical Resource Guide, https://kma.global/wp-content/uploads/2019/07/WCAG_2.1_Checklist.pdf (last visited Aug. 8, 2021).

[6] WebAIM, The WebAIM Million, https://webaim.org/projects/million/ (last visited Aug. 8, 2021).

[7] UsableNet, Midyear 2020 ADA Website and App Accessibility Lawsuit Report, https://info.usablenet.com/2020-midyear-ada-website-and-app-accessibility-lawsuit-report (last visited Aug. 8, 2021).