It has been an eventful year for web accessibility. 2021 brought a number of important legal decisions, the first hints of legal pushback against automated accessibility overlays, and renewed focus on enforcing web accessibility under the ADA by the new Biden administration. Over the course of 2022, we can expect some of these trends to develop further. There are also other expected developments that are important to take into account when planning your organization’s accessibility efforts this year.
The legal importance of accessibility continues to grow
The Americans with Disabilities Act (ADA) does not mention the web, but over time the federal courts have interpreted the law’s requirement for accessible public accommodations as applying to websites and mobile apps. There are also other laws and regulations, including California’s Consumer Privacy Act (CCPA), Unruh Act, and Section 508 that specifically require digital accessibility.
Over the past five years, starting in 2017, the number of private lawsuits filed under the ADA and Unruh Act have taken off with significant increases each year. Most recently in 2021, more than 4000 private lawsuits were filed. The vast majority of these cases are filed by a small number of plaintiffs (and law firms) in what are known as “surf-by” lawsuits.
More recently, over the past year, the federal Department of Justice (DOJ) has renewed its focus on web accessibility enforcement. For the first time in more than five years, the DOJ entered into settlements with Hy-Vee Supermarket Chain and Rite-Aid with the pharmacies required to follow specific mandates to ensure the continued accessibility of their COVID vaccine appointment portal. Separately, the DOJ also settled with the Champaign-Urbana Mass Transit District over the accessibility of its public transit website and apps.
While the DOJ’s efforts have targeted large companies and governmental bodies, smaller companies and organizations are frequently targeted by private lawsuits. Especially as larger companies get their accessibility act together, smaller organizations are an easy target for surf-by lawsuits.
Legal venue shopping is important for plaintiffs but not site owners
There were a number of interesting court rulings over 2021 that appear to provide some protection for companies facing surf-by lawsuits. The US Court of Appeals for the Eleventh Circuit (covering Florida, Georgia, and Alabama) ruled that the Winn Dixie supermarket chain’s website did not need to be accessible because websites are not places of public accommodation. It further noted that the inaccessible website did not post an “intangible barrier” to accessing or using the physical stores. (This ruling has since been overruled on a technicality and it remains to be seen whether future plaintiffs in this area can expect a similar decision.)
In the Eastern District of New York federal court, a judge ruled that the Newday newspaper’s website did not by itself constitute a place of public accommodation. Instead, it ruled that the ADA only applies to websites with a nexus to a physical brick-and-mortar operation that offer the same products or services as the physical location.
However, we don’t expect that either of these decisions will have a significant impact on the number or type or lawsuits that are filed in the coming year. If your website operates for a national audience or customer base, you should consider that plaintiffs are free to file suit in any location. We expect that federal lawsuits will continue to concentrate in New York’s Southern District federal court and that law firms will continue to file in California state court to take advantage of statutory damages under the Unruh Act.
Automated accessibility overlay widgets are not a shield
The mostly closely watched accessibility lawsuit this year featured a plaintiff claiming that Accessibe’s overlay widget made websites less accessible. The lawsuit, Murphy v Eyebobs, included expert testimony that more broady demonstrated that Accessibe and other automated overlay products were unable to reliably address accessibility. Ultimately, the parties reached a settlement in which Eyebobs agreed to hire an accessibility consultant to manually address its accessibility issues and is no longer working with Accesibe.
This was not the only lawsuit filed this year over the use of automated accessibility overlays. San Francisco Lightouse for the Blind filed suit against ADP, the payroll and HR provider, for using AudioEye on its payroll software. The parties quickly reached a settlement that included new accessibility policies that do not permit the use of automated overlays.
According to Accessibility.com, more than 10% of all ADA website federal lawsuits filed last year related to sites that were using third-party automated accessibility overlays. It is reasonable to expect that the Eyebobs lawsuit outcome will only increase this number.
We believe it is only a matter of time before plaintiffs start treating accessibility widgets and overlays as a beacon in helping to identify sites that have not yet made any real efforts to address accessibility violations on their site.
WCAG 2.2 to be released
Later this year, the World Wide Web Consortium (W3C) is finally expected to officially release the next version of the Web Content Accessibility Guidelines (WCAG 2.2). The working draft of version 2.2 was published in May 2021 and it builds on WCAG 2.1. The new set of guidelines is fully backwards compatible and adds 9 new success criteria (with 8 of them required to meet WCAG 2.2 Level AA).
While the new guidelines are still not final, we recommend that organizations currently building new sites should look ahead to the draft WCAG 2.2 guidelines and incorporate the latest standards into their design and development to the extent possible. For most sites, this will include specific guidelines on focus outlines, minimum link and target sizes, and new guidelines around forms and logins.
In the legal realm, we expect that adoption of WCAG 2.2 may lag a bit. (After all, there are still some courts that treat WCAG 2.0 as the legal standard.). But that doesn’t mean you should sit on your hands. As long as there are no official regulations from DOJ (or new federal laws) clarifying web accessibility requirements under the ADA, the situation remains somewhat murky. As a result, we recommend that all organizations be ready to begin to evaluating their digital properties under WCAG 2.2 standards once they are publicly released.
Getting a head start on WCAG 3.0
The next upcoming major revision to WCAG is still a few years away but it represents a very significant change to how accessibility is measured. The current working group documents show that WCAG 3.0 is likely to be offered as an option for use (rather than fully replacing the WCAG 2 standard). That said, there are several good reasons why you may prefer the upgrade including multiple accessibility levels with scoring standards that measure how accessible your site is (rather than the current all-or-nothing compliance standard). The WCAG 3.0 documentation is just a partial draft so far, but there are some significant new criteria that you may want to start thinking about now.
While from a legal perspective, the WCAG 3.0 scoring standards are a bit more forgiving than WCAG 2, there is a flip side to quantitative accessibility scores. Currently, there is no easy way for consumers to judge which product is more accessible. Some companies might publish a Voluntary Product Assessment Template (VPAT) conformance report that describes its accessibility features and gaps in detail. But even then, most customers do not have the knowledge or patience to read all of these details and come to a conclusion. Once WCAG 3.0 is out, it will be simple to see whose accessibility scores are higher. If you want to compete on the accessibility of your product (and you should), this means that you should think about how you can go above and beyond by addressing some of the higher level AAA standards in the current WCAG 2.1 criteria.
Whether you are brand new to digital accessibility or looking to get ahead of future accessibility guidelines, it can be easy to get overwhelmed. Access Armada can help you formulate your accessibility strategy for 2022 whether that includes remediation-first development or targeted audits. For qualifying small businesses, you can claim up to $5,000 in federal tax credits for your accessibility spending this year.