More and more website owners are facing the threat of legal claims based on ADA web site compliance failures. One very aggressive law firm in particular, has developed a high-volume process to extort from businesses using demand letters that threaten litigation, or federal suits. They have also successfully brought suit and settled against the likes of Home Depot, Footlocker, Brooks Brothers, Sears, among others.
Since the end of December 2015, they've changed tactics and now leverage these big named successes to scare businesses to yield to their demands. In the ski resort industry, where we have a large footprint, we've seen close to 20 resorts that have been hit with demand letters, and now also federal law suits, that are both awkward and expensive to fight. Targets appear to be somewhat random as businesses of all shapes and sizes across the country react with incredulous shock. While we will all agree that web accessibility for people with disabilities needs to be provided, its unfortunate that certain law firms are forcing this for profit versus a sincere concern for people with disabilities.
So for website owners that have not received demand letters or suits, what can you do to avoid becoming a target?
7 Steps to make your website "ADA compliant"
First, let me explain why I've put website "ADA compliant" in quotes. The ADA and the Dept of Justice have failed to provide rules for compliance. There's nothing by these statutes to actually comply with. There's nothing in the statute that refers directly to websites. So instead of ADA Complaint, I like is "ADA Friendly".
In lieu of guidelines from the feds, what website accessibility suits, demand letters, and courts point to is the W3C's Website Content Accessibility Guidelines version 2.0 (WCAG 2.0). This is the de facto standard, and even this is vague and was not designed for this application - as a legally defensible standard. But its what we have.
To learn more about the background for ADA compliance, tools, and info, visit this blog post from earlier in the year, which I have been updating.
Going into this process, I suggest first approaching your website development team as partner. Until now, these standards have not been widely known or followed. This isn't their fault, and since most issues are content-based, your internal team adding photos and content are likely responsible for the bulk of issues.
The following steps provide what I hope is a pragmatic approach to making your site ADA or WCAG 2.0 "Friendly".
1. Establish a Web site Accessibility Owner and Policy
First you will want to establish someone to lead this and ongoing efforts. That person will need to understand WCAG 2.0 and be technical enough to communicate with the development team.
- Select an internal web site accessibility manager
- Establish an ADA-friendly web accessibility policy
- Publish the policy on the website (doing so also signals would-be trolls to move onto lower hanging fruit)
- Begin documenting all steps towards website accessibility compliance
- CHECK WITH YOUR INSURANCE CARRIER. You're likely not covered for this.
2. Consider Hiring Website Accessibility Consultant
Depending upon your level of risk aversion and budget, you may very well want to bring in an ADA website accessibility expert. This is always recommended. This person should have experience in both testing and remediation for WCAG 2.0. This person should also have strong technical understanding of how websites are programmed and how content management systems work. This person will need to provide strategy, web accessibility compliance testing, and remediation guidance to both internal teams remediating via the CMS, and the developers that will handle all issues that cannot be addressed via the CMS. They can also train both those teams to ensure that future website updates are compliant.
3. Conduct WCAG 2.0 Website Accessibility Testing & Reporting
First things first, you need to audit the site to find all the issues to address. There are automated auditing tools, but what's key is the reporting output. Tools like WAVE are fine for testing an individual page, but what you need is an auditing tool that scans the entire site and then produce audit reports that you can then use in a remediation workflow. You need an output that you can actually use (spreadsheet).
There are three steps to this process. Here I list them in order practical priority. Meaning, you may not have the budget for all three.
- Automated Testing
This provides a litmus test and captures 20-25% of issues, but these will represent 60-70% of the volume of issues. The good news here for those with tight budgets, is that its these tools that these law firms will use to troll for targets. Towards the bottom of my previous blog post "Website ADA Compliance", I list out a number of testing tools to consider.
- Manual Code Review
Here someone with an understanding of both WCAG 2.0 and website code can catch all that is missed by automated testing. One simple tip that doesn't require a developer is to go through the website using just your keyboard. This will reveal dead ends and many issues that automated testing will miss.
- Assistive Technology Review
For those seeking the most thorough accessibiity, the tester uses the actual tools (JAWS, ZOOM test, NVDA, Dragon Natural Speaking, etc) used by those with disabilities to use the website.
4. Remediate items & Maintain Records
Once you have your audit reports, I suggest putting all these issues into a spreadsheet that will become your working document, and for each issue, establish ownership and record completion dates. Then segment the spreadsheet into those items that can be addressed via CMS versus those that you'll need a developer to tackle. Most of the CMS issues should be addressable by an internal team to save money.
5. Re-Audit The Website
Once the first round of remediation is complete. Run the tests again. The process of remediation might cause new issues to surface.
6. Train Content Providers
To avoid continuing to make the mistakes again, establish or use existing training guides to teach people contributing to your website to not just add alt tags to every image, but also to make sure the headings (H1, H2, H3, H4...) are used sequentially for example.
7. Establish a Schedule for ongoing Testing and Remediation
As part of your web accessibility policy and plan, establish a schedule and document all results.
What will all of this cost?
Naturally, I get this question a lot. Naturally it also... depends. The first thing to consider is the cost if you're targeted. Current demand letters being sent by the one law firm in Pittsburgh of note, also comes with a draft settlement that demands $34K plus all of their legal fees. Then you have your own legal fees, consulting and/or software costs for testing, and then remediation costs from your developer. Its not a far stretch to expect those costs to reach toward or even beyond 6 figures. Fighting or settling an actual suit would go higher of course.
With that said, a consulting firm that provides strategy, auditing, and oversight will bill out between $80/hr (freelance) and $250/hr. The time to do automated testing plus manual review of a website of scale (a ski resort) will likely be in the 80-120 hour range. As for remediation costs from your developer, its very hard to say. I've seen between 20-80 hours of work needed so far. Then you have your legal costs.
Needless to say, this is significant and scary. Not to be an alarmist, but what I hear a lot of people say is that this is too easy to copy-cat. This is very likely to "go viral", so reducing your exposure early is the best plan.
Ultimately, when it comes down to the goal of avoiding legal extortion, the name of the game is to get your profile as low as possible. Don't be the low hanging fruit.
Good luck, and let me know if I can help. I'm happy to provide a hour of consulting at no cost.
- Dave Gibson