It depends how you define web accessibility
Part of the problem in answering this questions is that the Americans with Disabilities Act doesn’t mention (let alone define) web accessibility. And until now, the Department of Justice has not provided any detailed guidance on minimum standards for compliance.
The best metric we have is the Web Content Accessibility Guidelines (WCAG). The WCAG are drafted by the World Wide Web Consortium (W3C), which is not a government body. But traditionally US federal courts have relied on WCAG Level AA as the primary standard for web accessibility. Similarly, out of court settlements have used WCAG as the relevant target.
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WCAG requires 100% accessibility
However, the most recent versions of WCAG (2.0 and 2.1) are quite strict in their definition of conformance. At any given level, a website or app must have zero defects or violations of the guidelines to remain in compliance. For many larger sites, that is not a feasible standard and even when it is possible, it can be extremely ambitious.
The new WCAG 3.0 version under development intends to address this issue by rating web accessibility using a scoring rubric rather than a yes-no compliance binary. But WCAG 3.0 will not be complete until 2024 at the earliest, which leaves the challenges of judging compliance in place until then.
A new federal court framework?
A new court ruling dropped last month (Gomez v. Trinitas Cellars, LLC) that calls this approach into question. In this case, the defendant’s winery website had some extremely common accessibility violations including missing alternative text for the logo and social media icon linked images. Both sides were in agreement that these accessibility issues were present and that they made it impossible for screen reader software to properly read and announce the link's purposes to users. However, the court dismissed the case because the plaintiff did not show that these accessibility violations prevented him from accessing the winery’s services.
The ruling did note that the plaintiff was free to file a more detailed complaint. But this is still a big deal! Under this decision, simply having WCAG violations is not necessarily a violation of the ADA.
How should this ruling affect your business
This is just one court
This may be a plausible reading of the ADA, but it’s worth keeping in mind that this is only one court’s opinion. This interpretation may spread, but it hasn’t yet been affirmed by any other judges, let alone an appeals court.
Staying out of court is better than winning in court
But in our opinion, finding yourself in court means something else has gone wrong. The best ADA defense is making sure your site is sufficiently accessible that it does not attract attention from surf-by plaintiffs. This should include making sure that your services or products are actually accessible to potential customers with disabilities. But by definition it also includes taking care of low hanging fruit like missing alt text (especially those that are easy to fix like your site logo and social media links).
If you do find yourself in court, this may be a fruitful defense. We’ll leave that to the lawyers. But think about how much it costs to fight it out in court. In this case, the defendant spent over $30,000 in attorney’s fees and $2,300 for expert witnesses. Even if the legal facts are on your side, it is almost certainly less expensive to just fix the issue. And that’s especially true in a case like this where fixing alt text should cost almost nothing even if you need to hire a developer to fix it.
And of course, if you do lose, you’ll have to fix these issues anyways.
Still a lot of uncertainty
Even within this decision, there is still a lot of ambiguity as to what is considered a website accessibility violation under the ADA. The court provided a few examples of items that it felt were not covered under the ADA. But how far does this go? Hopefully, we’ll see some additional test cases (and appeals court decisions) in the future. But as we noted above, you do not want to be the test case!
Don’t rely on plaintiff laziness
Ultimately, as we noted above, these particular issues are trivial to fix and easy to find. If your site is missing alt text for its logo and social media icons, there are almost certainly much bigger issues lurking beneath the surface.
This case was filed by a serial plaintiff as part of a larger batch of lawsuits against winery websites. In all likelihood, the plaintiff never made a real effort to use the websites to purchase or learn about the wineries’ goods and services. But it’s easy to imagine they would have run into real accessibility barriers (and ADA violations) if they had looked a little bit harder.
More accessible is better than less
We strongly believe that the compliance mindset and the quest for perfection are a distraction from what most businesses should prioritize when it comes to accessibility. WCAG is a great north star and perfection is a great aspirational goal. There are areas where we recommend going beyond the Web Content Accessibility Guidelines as published and areas where you can still make a big impact even if you fall short.
As the court noted, not all accessibility issues have the same severity or impact. Even if full compliance is not possible in the short term, you can make a real difference by clearing up the highest impact accessibility issues along with the easier low hanging fruit. This can make your business more attractive to the underserved 20% of the population with disabilities and reduce (if not eliminate) your risk of being targeted for an ADA lawsuit.
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