A Lawyer and a Content Strategist Walk Into A Bar...
No, just kidding. But we did ask Blend director of strategy, Corey Vilhauer, and Joel Engel from our neighbor law firm Woods, Fuller, Shultz & Smith, to give their respective opinions on website accessibility and why website owners should be proactive in taking steps to make sure they are meeting industry standards.
1. What is accessibility and should I be concerned about it?
JE: In this context, accessibility generally refers to the inclusive practice of eliminating barriers that prevent access to websites. These barriers can include disabilities such as vision or hearing loss, but can also include cognitive, neurological, or motor impairment. If your business has a website, you should be concerned about accessibility for both ethical and legal reasons.
CV: To piggyback off of Joel here, you can really think about web accessibility in the same way you might think about accessibility in a physical brick-and-mortar business: as someone responsible for providing a service, you have both a social and legal responsibility to provide access to your service — just as your front door should be accessible via wheelchair, your website needs to be accessible to those who cannot view the design, or hear videos.
2. Why does it seem like accessibility became a serious concern for companies all of a sudden?
JE: Website accessibility lawsuits under the Americans with Disabilities Act (“ADA”) exploded in 2018 with more than two-thousand lawsuits filed in federal court. That number increased in 2019 and we can expect as many or more in 2020. Unfortunately, while ADA requirements for website accessibility are important and there are bona-fide plaintiffs with legitimate claims, many of these lawsuits are lawyer-driven claims intended to obtain nuisance value settlements.
CV: I also think that we’ve long moved past websites as a “nice to have” element of a business — there is a growing percentage of businesses that are web-first or web-only, and this is paired with a younger generation of users who are not only mobile-first, but have never lived without the internet, which leads to more assumptions and expectations around how web content is accessed.
3. In terms of accessibility, what legal actions can be taken against me because of my website?
JE: If your website is inaccessible under generally accepted guidelines such as the WCAG 2.0, your business can be sued under the federal ADA. While compensatory damages generally are not available for these types of lawsuits, a plaintiff can get injunctive relief compelling compliance with the WCAG 2.0 and, importantly, attorneys’ fees. The threat of attorneys’ fees is the “stick” that forces many businesses to accept nuisance value settlements. Many states also have their own versions of the ADA that can include statutory penalties.
4. How do those in the legal community think accessibility will impact industries in the long term?
JE: There’s many competing issues here. On the one hand, accessibility is important and laws requiring accessibility are well-intentioned and necessary. That said, there is also general recognition that the federal government needs to enact regulations to clarify what accessibility actually means so that businesses can comply, and that additional action is needed to curb nuisance lawsuits.
CV: Joel’s point on federal regulations also reflects on the web community’s oversight on web accessibility. Currently, the web accessibility guidelines are dictated by a volunteer organization (the World Wide Web Consortium, or “W3C”) and while respected web designers and developers follow these requirements, they are not regulated or required in the same way that vehicle safety standards, or home daycare standards, which means they’re still seen as “up for interpretation.”
5. How do I know if I may be potentially liable for accessibility related legal action and how can I protect myself?
JE: The best way to protect yourself is to be proactive with website accessibility. I help my clients navigate demand letters and lawsuits, but the true experts in this field are organizations like Blend who have the ability to ensure compliance with industry standards and best practices depending on your individual circumstances.
CV: Additionally, understand that accessibility compliance isn’t a set it and forget it process. While a big part of it is making sure your site is designed and built to accessibility standards, the content, images, and other editorial work you manage on the site also must conform. It’s crucial to have someone on your team who can at least understand and confirm that content, including images, are accessible when published.
Bringing your site up to an acceptable level of accessibility to those with disabilities can be a real challenge, especially given some of the grey areas of legal precedent. Do you know whether your site would pass an accessibility audit? Are you currently making web accessibility a part of your design and content process?