Home | News & Events | DGS Legal Alert: Website Accessibility – The Equitable, Profitable, and Litigation-Avoidant Move

Legal Alerts | May 18, 2023 Davis Graham Legal Alert: Website Accessibility – The Equitable, Profitable, and Litigation-Avoidant Move

Global Accessibility Awareness Day, which falls on May 18, was created to promote digital access for people with disabilities. While great strides have been made under the Americans with Disabilities Act (“ADA”) to ensure physical spaces are accessible, website accessibility has not kept pace. In fact, as of 2023, only 3.7%[1]
of the internet is fully accessible to people with disabilities. This data indicates that the vast majority of business owners with an online presence do not know that their websites are inaccessible—and, importantly, that their inaccessible websites are driving away customers and potentially violating the law.[2]

Taking the time to learn about how your company’s website can become digitally accessible not only promotes inclusion for people with disabilities, but also can help your company both increase its profitability and avoid costly litigation. In this article, you will be equipped with the knowledge and resources to ensure that your website is accessible and understand why having an accessible website is so critical. We will cover (1) examples of accessibility barriers on websites; (2) the legal landscape surrounding website accessibility; and (3) ways to ensure that your company’s website is accessible.

A. Website Accessibility and Barriers for Folks with Disabilities

Twenty-six percent of Americans have some form of a disability, including 6.1% of U.S. adults who are deaf or have serious difficulty hearing, and 4.8% of U.S. adults who have a vision disability with blindness or serious difficulty seeing even when wearing glasses.[3]
In fact, most people reading this article will develop a disability at some point in their life. According to the Joint Center for Housing Studies of Harvard University, “41 percent of older adults aged 65-79 have at least one self-care, household activity, or mobility disability” and for people “80 and over, this share rises to nearly 71 percent.” [4]

Despite the large population of individuals with disabilities, the internet largely remains an inaccessible space. According to the Institute for Disability Research, Policy, and Practice at Utah State University, over 96.3% of websites fail under the prevailing accessibility protocols.[5]

As explained by the World Wide Web Consortium in this video and by the Department of Justice’s ADA website, folks with vision, hearing, and fine motor impairments are most often impacted by website accessibility issues. Common barriers to accessibility on websites include the following design issues:

  1. Poor color contrast. People with limited vision or color blindness cannot read the text if there is not enough contrast between the text and background (for example, light gray text on a light-colored background).
  2. Lack of text alternatives (“alt text”) on images. People who are blind will not be able to understand the content and purpose of pictures, illustrations, and charts when no text alternative is provided. While screen reading technology can read the other content on the website out loud, the screen reader cannot read images. Text alternatives convey the purpose of an image. For example, alt text that might accompany a picture of a South Carolina beach might say: “Alt Text: Tall grass on a sand dune with the beach and ocean surf in the background on a sunny day.”
  3. No captions on videos. People with hearing disabilities may not be able to understand information communicated in a video if the video does not have captions.
  4. Inaccessible online forms. People with disabilities may not be able to fill out, understand, and accurately submit forms without things like:
    1. Labels that screen readers can convey to their users (such as text that reads “credit card number” where that number should be entered);
    2. Clear instructions on filling out the forms; and
    3. Error indicators (such as alerts telling the user a form field is missing or incorrect).
  5. Mouse-only navigation (lack of keyboard navigation). People with disabilities who cannot use a mouse or trackpad will not be able to access web content if they cannot navigate a website using a keyboard.[6]

By ensuring that your website does not create these accessibility issues, you can simultaneously support the disabled community and increase your company’s profitability. Websites that are more accessible have better search engine optimization and improved user experience for all individuals who visit your website. Further, failure to make a website accessible can result in lost revenue and customer dissatisfaction.

According to a 2018 article from W3’s Education and Outreach Working Group, “[i]n the US, the annual discretionary spending of people with disabilities is over $200 billion. The global estimate of the disability market is nearly $7 trillion.” When pairing these numbers with the results of a 2019 survey in the United Kingdom revealing that nearly three-quarters of disabled online consumers (69%) will simply click away from websites that they find difficult to use due to the effect of their disability, the monetary impact to inaccessible e-commerce businesses is staggering. That study further revealed that 83% of participants with access needs limit their shopping to sites that they know are accessible, and 86% have chosen to pay more for a product from an accessible website rather than buy the same product for less from a website that was harder to use.

Companies that have inaccessible websites are not only leaving large sums of money on the table – they are also increasing their vulnerability to a costly lawsuit.

B. Legal Requirements for Website Accessibility

In recent years, federal and state laws have required website accessibility for certain businesses and other entities. Therefore, a company’s failure to make its website accessible can result in damages, attorneys’ fees, and injunctive relief that requires the company to make its website accessible.

Title III of the ADA requires that “places of public accommodation”—public-facing businesses that fall within at least one of 12 categories—provide “equal access” to their goods, services, and facilities to individuals with disabilities. While websites are not mentioned anywhere in Title III or its regulations, the Department of Justice, which oversees and enforces the ADA, takes the position that “the ADA’s requirements apply to all the goods, services, privileges, or activities offered by public accommodations, including those offered on the web.”[7]

Several federal courts have confirmed that certain businesses operating online must ensure that their websites are accessible to individuals with disabilities in order to comply with Title III of the ADA. See, e.g., Robles v. Domino’s Pizza, LLC, 913 F.3d 898 (9th Cir. 2019) (ruling in favor of blind plaintiff where plaintiff could not order pizza because Domino’s failed to design its website to enable screen-reading software to read the website and its order form). Similarly, in recent years, several states, including Colorado, have passed laws to develop and maintain statewide website accessibility standards. For instance, in 2021, Colorado passed a bill requiring state and local governments as well as government agencies to bring their websites into compliance with established accessibility standards to avoid civil penalties. See Colorado HB21-1110 (making it a state civil rights violation for a government entities to exclude people with disabilities from receiving services or benefits because of lack of accessibility on their websites). The influx of laws being passed in this space and the increase in litigation over website accessibility make it clear that companies need to pay attention to web accessibility and the hazards (ethical, financial, and legal) of failing to make their websites accessible.

C. Ensuring Website Accessibility

So, what can your company do to ensure that its website is accessible? Here are some steps you can take to promote compliance with the ADA and the Web Content Accessibility Guidelines 2.1 (“WCAG 2.1”) (the leading web-accessibility standard that several states, including Colorado, have designated as the standard that must be met for regulated entities).

  1. Conduct a website accessibility audit. A website accessibility audit can identify accessibility issues and provide a roadmap for compliance. This can be done as a self-audit
    or conducted by a consultant such as Userway. The cost can vary depending on the size and complexity of the website. To quickly check your company’s compliance, you can type your company website URL into this search bar.
  2. Use accessible design and development practices. Going forward, when designing and developing your company’s website, you should consult accessible design and development practices as laid out in WCAG 2.1. These include using alternative text for images and videos, ensuring that content is keyboard-accessible, and providing captions and transcripts for audio and video content.
  3. Solicit user feedback. In addition to providing accessibility features on your website to make it easier for individuals with disabilities to navigate and use the site, consider soliciting feedback from users to understand where and how your website is not meeting their needs. Users should be able to easily submit accessibility complaints – if your users can’t submit feedback easily via a single attempt, they won’t keep trying.[8] Check out Google’s accessibility feedback form as an example of how you might format yours.
  4. Add an Accessibility Statement to your website. An accessibility statement describes your company’s policy, goals, and accomplishments related to web accessibility. The statement also includes instructions on how to use specific accessibility technology that is available on the website and how to contact the organization if a disabled visitor runs into problems.[9] As an example of a quality accessibility statement, visit Patagonia’s website and navigate to the bottom of the homepage.

Improving the accessibility of your website not only supports people with disabilities, but can also help you avoid legal exposure and increase profits. By consulting the WCAG 2.1 and ADA guidelines and soliciting feedback from website users, you can work to ensure that your company’s website is accessible to all individuals, regardless of ability.

Should you have a question about the contents of this article please contact Sarah Barr or a Davis Graham Partner.

[1] https://webaim.org/projects/million/

[2] https://www.forbes.com/sites/forbestechcouncil/2022/10/11/whats-next-for-digital-accessibility/?sh=1aa7aedd4bbd

[3] https://www.cdc.gov/ncbddd/disabilityandhealth/infographic-disability-impacts-all.html


[5] https://webaim.org/projects/million/

[6] https://www.ada.gov/resources/web-guidance/

[7] https://www.ada.gov/resources/web-guidance/

[8] https://www.boia.org/blog/getting-feedback-from-users-to-improve-accessibility

[9] https://www.boia.org/blog/why-websites-need-an-accessibility-statement

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