Blog Post

ADA Compliance Is Serious Business

This is a dreaded topic for small business owners, but one that is becoming increasingly more important. There are certainly genuine lawsuits in which a website guest with a hearing or sight impairment has been discriminated against in that they were unable to buy their desired service or good due to poor inaccessibility on a website, but the number of spurious or “surf-by” lawsuits is growing at a terrifying rate.

Who are these monsters?

A “surf-by” lawsuit is one in which the business’ website was visited not to buy a service or good, but for the sole purpose of sniffing out some type of accessibility violation.  This is a lucrative business for a handful of law firms who specialize in this practice. According to over 70% of all compliance cases are filed by the same 10 law firms. Very often these law firms will send an initial demand letter and the targeted business will be forced to settle outside of court or face an expensive legal battle - over 90% settle. We’ve seen a 23% increase in ADA complaints from 2019 to 2020 and that number is expected to increase at an even faster rate as many businesses were forced to move their operations online due to COVID lockdowns. To make you even more nervous, these stats only include the number of cases filed in court, not the number of cases settled before the lawsuit was filed.

What is ADA compliance?

Your website is a public space, just like the ice cream shop down the street. It’s important for every business owner to recognize that their website can possibly be viewed by a potential customer using something like a screen reader and that there are certain elements that have to be present on their website for this type of technology to work. People with these types of disabilities don’t live in the stone-age, they use the internet just like everyone else - albeit sometimes with less ease. Here’s a great video of what it's like surf to web using a screen reader: Screen Reader Demo for Digital Accessibility.

An ADA compliant website will, at the very least, include the following:

  1. Logical HTML coding: Your website should be designed and developed in such a way as to make logical sense if all the cute styles and decorative elements were removed. Do you sell a special type of corn that doesn’t get stuck in people’s teeth who have braces? Then make sure that title of that product isn’t at the bottom of the page next to the footer; it should be next next to the product images and before the product description.
  2. Labels on images, links, and form elements: You should use proper “alt” and “title” tags on all images and links and accurately describe those elements as they are on used on your website. Form fields should include a “label” field or a “title” element.
  3. Contrasting colors: Don’t put black text on a gray background unless it’s text you don’t want people to see.
  4. Closed captions for audio and video: Include descriptive text or a link to a transcript for any audio or video files that may play on your website.
  5. Focusable elements: Make sure interactive elements on your website are properly coded so they can be “tabbed” to and interacted with.
  6. Accessibility statement: It’s a great idea to include an “Accessibility statement” that has an easy-to-access e-mail address or phone number for customer’s with disabilities to contact you. A great example of this is Upwork’s “Digital Accessibility Statement”.

Who is at risk?

The safest answer to this question is: you. However there are some industries that are targeted more than others. If you just run a blog championing right-wing conspiracy theories then you’re probably safe, but if you run an online-store that sells books about these right-wing conspiracy theories then you are at much greater risk. The retail industry accounts for almost 80% of all ADA complaints filed with the food service industry coming in a distant second.

What can I do?

For many, full ADA compliance is a moving target that can never be achieved, especially when powerful law firms will view any misstep as an opportunity to make some money. Here are some things you can do to protect yourself:

One of the best things you can do is try a screen reader out of yourself. If you’re using a Mac your computer has a built-in screenreader tool called VoiceOver. Enable VoiceOver and try navigating to your favorite websites, sending a few emails, or even buying something on Amazon. It’s not an easy task and hopefully will show you the importance of prioritizing accessibility on your website.

There are also a massive amount of tools available online that will scan your website and give you a detailed report of your website’s accessibility. Here are a few:

  1. UsableNet Automated Digital Accessibility Testing Tool
  2. PowerMapper
  3. WAVE Web Accessibility Evaluation Tool

Finally, invest in accessibility! I’m not talking about smacking one of those “accessibility widgets” on top of your website and calling it a day. Many websites that use these widgets have been sued for the same violations as non-widget websites. The best you can do is talk to your web developer about bringing your website up to speed with the latest accessibility guidelines (WCAG 2.1 AA at the time of this writing) or hire an accessibility expert on a site like Upwork.

Is there hope?

Not really. Lawyers are really good at suing people and they’ll continue to do this until the law changes. A new piece of legislation was introduced in February of 2021 that will make it harder for law firms to send these demand letters and will give businesses an opportunity to fix their accessibility issues before being sued, but this legislation is not expected to make it to the floor. See the bill here:

This is not legal advice and is for informational purposes only