Many people are understandably confused by ADA compliance as it applies to the digital world.
This plain English guide will succinctly outline the law, the technical standards, the legal landscape, and best practices for making your website ADA compliant. At the conclusion of this guide, I will provide a list of resources to assist you with ADA compliance.
While ‘ADA website compliance’ is a colloquial or informal term, it actually encompasses an entire industry with a far-reaching impact.
Table of Contents
The Law: Americans with Disabilities Act (ADA)
As a general rule, Sec. 12182 (a) states, Prohibition of discrimination by public accommodations under Title III of the ADA:
No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.ADA.gov
Section. 12182 (b)(2)(A)(iii) also states:
a failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden;ADA.gov
This subsection leads to the Code of Federal Regulations (CFR) effective communication requirement under 28 CFR § 36.303(c)(1):
A public accommodation shall furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities. This includes an obligation to provide effective communication to companions who are individuals with disabilities.eCFR.gov
So, generally, these legally excerpts require that:
- places of public accommodation do not discriminate against people of disabilities
- places of public accommodation furnish auxiliary aids and services to ensure effective communication
So, in theory, a website could either be considered the place of public accommodation itself, or it could be viewed as an auxiliary aid necessary for ensuring effective communication.
If a court were to interpret the ADA to apply to a website in either circumstance, the website owner or operator could potentially be found in violation of the ADA.
Although neither this excerpt nor any other part of the ADA explicitly mandates the accessibility of modern digital technology, nor specifies guidelines for making such technology compliant, the Department of Justice (DOJ) has adopted the stance that the ADA does indeed apply to websites.
Who is Required to Make Their Website ADA Compliant?
As the language clearly indicates, Title III of the Americans with Disabilities Act applies to places of public accommodation. But what is a place of public accommodation?
Section 12181. Definitions provides 12 categories with several of places of public accommodation.
(7) Public accommodation
The following private entities are considered public accommodations for purposes of this subchapter, if the operations of such entities affect commerce
(A) an inn, hotel, motel, or other place of lodging, except for an establishment located within a building that contains not more than five rooms for rent or hire and that is actually occupied by the proprietor of such establishment as the residence of such proprietor;
(B) a restaurant, bar, or other establishment serving food or drink;
(C) a motion picture house, theater, concert hall, stadium, or other place of exhibition entertainment;
(D) an auditorium, convention center, lecture hall, or other place of public gathering;
(E) a bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment;
(F) a laundromat, dry-cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a health care provider, hospital, or other service establishment;
(G) a terminal, depot, or other station used for specified public transportation;
(H) a museum, library, gallery, or other place of public display or collection;
(I) a park, zoo, amusement park, or other place of recreation;
(J) a nursery, elementary, secondary, undergraduate, or postgraduate private school, or other place of education;
(K) a day care center, senior citizen center, homeless shelter, food bank, adoption agency, or other social service center establishment; and
(L) a gymnasium, health spa, bowling alley, golf course, or other place of exercise or recreation.ADA.gov
Who is Exempt From Making Their Website ADA Compliant?
The two named entity exemptions under Title III are religious organizations such as churches and private clubs.
Specific requirements must be met. Charging membership/annual fees does not automatically mean the business is exempt.
One common misconception is that small businesses with less than 15 employees are exempt from ADA compliance. This originates from the 15 employees or more threshold from Title I of the ADA but does not apply to Title III.
Further, Non-profits are also not exempt from the ADA.
For more information on who the Americans with Disabilities Act applies to, read the Businesses That Are Open to the Public page on ADA.gov.
The DOJ is the regulatory and enforcement agency behind Title II and Title III of the ADA. Thus, the DOJ is the authoritative agency who is looked to for guidance.
The DOJ’s Guidance on Web Accessibility and the ADA states:
Businesses and state and local governments have flexibility in how they comply with the ADA’s general requirements of nondiscrimination and effective communication. But they must comply with the ADA’s requirements.”
The Department of Justice does not have a regulation setting out detailed standards, but the Department’s longstanding interpretation of the general nondiscrimination and effective communication provisions applies to web accessibility.1
Businesses and state and local governments can currently choose how they will ensure that the programs, services, and goods they provide online are accessible to people with disabilities.ADA.gov
Here the DOJ is stating that businesses must comply with the ADA but they have flexibility in how they comply.
While flexibility in compliance sounds like a good thing, the problem is plaintiffs’ lawyers have taken advantage of this ambiguity because it means that they too, have flexibility in deciding whether a website is not ADA compliant.
DOJ Private Enforcement Actions
Although the Department of Justice (DOJ) has not explicitly stated how to make a website ADA compliant, they have initiated a number of private enforcement actions concerning digital accessibility that have resulted in settlements.
Entities that have settled with the DOJ include:
- QuikTrip (2010)
- H&R Block (2014)
- Peapod (2014)
- National Museum of Crime and Punishment (2015)
- edX (2015)
- Carnival Cruise (2015)
- McLennan County, Texas (2015)
- Miami University (2016)
- Rite Aid (2021)
- Hy-Vee (2021)
- Kroger (2022)
- Meijer (2022)
There were numerous mandates in every consent decree and settlement, but the ultimate theme was the DOJ stipulated the entity must make their digital asset WCAG conformant and post a conspicuous accessibility statement (notice) on their website.
In recent settlements, the DOJ required WCAG 2.1 AA conformance. As mentioned previously, version 2.1 was current until October of 2023, when WCAG 2.2 was officially released.
Because the DOJ is the regulatory and enforcement agency behind Title II and Title III, these settlement requirements are the best guidance possible.
As such, the best practices for ADA website compliance are WCAG 2.1 AA conformance (or 2.2) and posting an accessibility statement (with contact information for support).
The actual legal standard for ADA compliance is the meaningful access standard.
The term “meaningful access,” as a legal standard comes from Alexander v. Choate, 469 U.S. 287, 301-302 (1985) where the court said that persons with disabilities are entitled under §504 of the Rehabilitation Act, to meaningful access to a State’s programs, benefits, and activities. Since the ADA and the Rehabilitation Act get interpreted the same way, that standard has carried over to the ADA.JDSupra.com
Of course, when we ask what constitutes a meaningfully accessible website, we arrive back at a general standard where the technicalities can be argued.
Because technical arguments are quite expensive to litigate in court, it is best to preempt litigation altogether.
The Web Content Accessibility Guidelines (WCAG) are technical standards for web accessibility that provide direction on how to make a website (or other web asset) accessible to people with disabilities.
Although WCAG is not the law, it is frequently referenced as a basis for determining whether or not a website is accessible. Some laws, including Section 508 of the Rehabilitation Act of 1973 and the Accessibility for Ontarians with Disabilities Act (AODA), have incorporated WCAG 2.0 AA into the law.
There are four versions of WCAG (1.0, 2.0, 2.1, 2.2) and three conformance
levels (A, AA, AAA). Because AAA is extremely strict, level AA conformance is the defacto conformance level referenced.
Version 2.0 is best viewed as the classic version. It was published in 2008 and
provides a strong baseline for accessibility.
Version 2.1 was published in 2018 and includes key mobile
Version 2.2 was published in 2023 and is the current version.
Each successive version adds success criteria, or accessibility requirements necessary for conformance, to the previous version.
Another way to think of success criteria is as things to do to make your website more accessible.
Some examples of success criteria include:
- 1.1.1 Non-text content
- 1.3.1 Info and Relationships
- 2.1.1 Keyboard
- 3.2.1 On Focus
- 4.1.2 Name, Role, Value
What many people don’t realize is many accessibility considerations that are traditionally thought of as necessary for conformance are more appropriately categorized as sufficient or advisory techniques.
This is because websites can conform to many success criteria in multiple ways.
Sufficient techniques are reliable ways to meet the success criteria.
For example, success criterion 2.4.1 Bypass Blocks is commonly associated with the skip navigation or skip to content link, but 2.4.1 can be satisfied with correctly structured headings or by having landmarks in place.
A mechanism is available to bypass blocks of content that are repeated on multiple Web pages.W3.org
Note that the only requirement is that there is a mechanism available to bypass blocks – 2.4.1 doesn’t necessitate what mechanism.
Advisory techniques are suggested ways to improve accessibility, but they aren’t sufficient for full conformance by themselves for a number of reasons.
For example, success criterion 1.4.4 Resize Text requires:
Except for captions and images of text, text can be resized without assistive technology up to 200 percent without loss of content or functionality.W3.org
An advisory technique for 1.4.4 (and 1.3.1) is to use CSS to control visual presentation of text.
Although insufficient for full conformance with 1.4.4, this will allow users to modify, via the user agent, the visual characteristics of the text to meet their requirement. Thus, it is a consideration to optimize for accessibility.
Clearly WCAG can get quite technical but the important takeaway is these technical standards are a tremendously helpful reference point.
These success criteria and many others cover critical aspects of web accessibility so we can ensure that people with various disabilities can access our website.
When many people search for an ADA website compliance checklist, they are actually looking for a checklist of WCAG success criteria.
The impact of accessibility is large and affects people with disabilities such as:
- visual impairments (blindness, color blindness, low vision)
- hearing impairments (deafness, hard of hearing)
- motor impairments (difficulty or inability to use a mouse, slow response time, limited fine motor control)
- cognitive impairments (distractibility, inability to remember or focus on large amounts of information)
- learning disabilities (dyslexia and others)
In sum, WCAG is extremely helpful when it comes to improving the accessibility of our website and ensuring access to people with a wide range of disabilities.
Most website owners find out about ADA compliance for websites through a demand letter or lawsuit or from a peer who has already been sued.
There are literally thousands of complaints concerning website accessibility filed in state and federal court every year. It’s estimated that tens of thousands are settled privately before ever becoming public record.
Most litigation involves 20 plaintiffs law firms. Some of the most active law firms are:
- Mars Khaimov, PLLC
- Pacific Trial Attorneys, APC (Scott Ferrell)
- Stein Saks, LLC (Mark Rozenberg)
- Law Office Of Pelayo Duran, P.A.
- Manning Law, APC
- Gottlieb & Associates (Michael A. LaBollita)
- Shaked Law Group, P.C. (Dan Shaked)
These firms usually initiate litigation on behalf of a plaintiff who is blind or visually impaired. The general claims asserted typically revolve around existing accessibility issues on the website creating a barrier to access.
Following, these issues are tantamount to intentional discrimination on the part of the defendant website owner/operator. Thus, the law firm contends that the defendant is in violation of the law and their client is entitled to relief and/or damages.
Accessibility Issues Claimed
Plaintiffs law firms often apply the Web Content Accessibility Guidelines very strictly against websites, with technical non-conformance on a number of success criteria, opening the possibility of litigation.
The top three issues claimed in litigation involve:
- Missing alt text
- Missing form field labels
- Keyboard navigability
Many plaintiffs lawyers use automated accessibility scans to find issues. Popular scans used by lawyers include:
However, a growing trend is for plaintiffs lawyers to contract with accessibility experts to test websites and find issues beyond what automation can detect.
To learn how to find and fix the most commonly claimed issues in litigation, sign up for the ADA Compliance Course.
The bulk of ADA website compliance lawsuits take place in:
- New York
Both in state and federal court. New York federal courts are in the 2nd circuit, California federal courts are in the 3rd circuit, and Florida federal courts are in the 11th circuit.
Other Anti-Discrimination Laws
The Americans with Disabilities Act isn’t the only law that plaintiffs lawyers name as a cause of action. Other general anti-discrimination laws may come into play.
In California, the Unruh Act is commonly named. In New York, the New York State Human Rights Law (NYSHRL) and New York City Human Rights Law (NYCHRL) are also frequently cited.
The vast majority of cases are settled privately and the actual settlement amounts for ADA website lawsuits vary based on a number of factors including:
- Plaintiffs law firm
- Defendant revenue
- Defense attorney
- Strength of case
Cases in New York typically have the highest settlement amounts. In general, ADA website litigation usually settles for between $5,000 and $20,000.
How to Make Your Website ADA Compliant
As we have covered, the best practices for ADA website compliance are 1) making your website WCAG 2.1 AA conformant and 2) posting a conspicuous accessibility statement.
However, it’s important to note that making your website fully WCAG conformant can take several weeks, if not months.
And when most website owners seek to make their website ADA compliant, their primary concern is practical, not technical compliance: how do I avoid getting sued over website accessibility?
The best path forward is to strategically prioritize and fix the 15 accessibility issues plaintiffs lawyers claim the most and then continue with WCAG conformance.
The ADA Compliance Course is specifically designed to help website owners train their digital teams on exactly how to prioritize and immediately find and fix these issues.
With that first step in mind, let’s cover how to make a website fully WCAG conformant.
Website Accessibility Audit
An audit is a formal, manual evaluation of a website’s accessibility conducted by a technical accessibility expert. Essentially, during an audit, a website is being graded against the Web Content Accessibility Guidelines and any accessibility issues are documented and included in the audit report.
While scans and other tools are commonly used during the audit process, the audit results must always be the result of manual review.
During an audit, one or more technical experts will inspect elements, content, and code. Experts will also interact with and test the website using a keyboard and at least one screen reader.
Also, although an audit, optimally, tells the website owner all accessibility issues that reside on the website, no issues are fixed as the result of an audit.
Audits usually cost between $3,500 and $10,000 for most websites.
The price will depend on several factors including:
- number of pages within scope
- state of accessibility
- complexity of the website
- environment combinations
Environment combinations may include:
- operating system
- assistive technology
Website Accessibility Remediation
Remediation is the process of fixing accessibility issues on a website.
Issues that involve images, video, audio, and text can typically be remediated by someone who is non-technical but familiar with the accessibility measures necessary. For example, adding closed captions and audio descriptions to video.
Issues that involve code are often technically complex and require someone with development experience to resolve the issue. For example, most web designers will not know when and how to add appropriate ARIA roles and attributes. ARIA stands for Accessible Rich Internet Applications.
Once remediation has been completed, a website should be, in theory, WCAG conformant (at least for the scope of the audit and remediation).
Remediation costs usually start at $2,500 and vary based on the volume of issues and complexity. This cost can be lower if the provider who audits is also responsible for remediation, but most accessibility companies do not offer remediation services for fear of liability.
Of course, it’s always best to audit post-remediation to ensure that all issues have been resolved and no oversights or errors have been made. This is referred to as the re-audit phase.
If conducted by the original auditing provider, a re-audit is often a fraction of the cost of the original audit.
User testing is the testing of a website or other digital asset conducted by an accessibility professional with one or more disabilities. The testing is conducted under formal settings and usually includes the use of assistive technology such as a screen reader or voice dictation software.
Although similar in that a primary objective is to uncover any accessibility issues, user testing is distinct from an audit in that user testing is much more concerned with a user’s practical experience vs. technical instances of non-conformance with WCAG.
User testing will result in some form of documentation. This may be a written report and/or a recording of the user testing session.
Re-audits and user testing are both recommended additions to any website accessibility project because they act as a multi-tier net to help filter out and catch accessibility issues that were not initially detected.
ADA Website Compliance Products
Unfortunately for consumers who are trying to learn what is necessary for an ADA compliant website, there are many accessibility vendors who attempt to mislead them into unnecessary or undesirable products and services that provide little to no value and don’t prevent lawsuits.
Widgets, also commonly referred to as plugins or toolbars, are highly marketed as “solutions” for website accessibility and ADA compliance, but the widget makers are known for making false claims (e.g., the widgets prevent lawsuits). Also, hundreds of accessibility professionals have spoken out against their efficacy and vowed never to install or recommend overlays.
If a user activates and selects settings, overlay widgets can render superficial adjustments like zoom, color contrast, highlights, and font changes but these adjustments literally lay over the website and do not fundamentally make the website accessible (because manual code and content remediation is necessary).
While automated scans can be quite helpful in returning instant results, virtually all of the value from scans can be accessed for free. Free scans include:
- WAVE (beginner-friendly)
- AXE (aimed towards developers)
- Google Lighthouse
WAVE is the most popular scan and is both intuitive and educational. AXE is more technically advanced and partially flags a few more issues than WAVE. AXE can reliably detect as many issues as any other paid scan.
But many companies attempt to portray their premium scans as a necessary subscription by featuring:
- unlimited page scans
- customizable reports
- monthly reports
While these features are seemingly useful and the automated aspect is quite appealing, in practice the benefit is nominal for the premium add-ons.
- remediation can only take place on one page at a time, maybe two if the remediation team is zealous (and it literally takes seconds to get scan results for two pages for free)
- reports are nice to have but are unnecessary and still missing most accessibility considerations
- monitoring and monthly reports on accessibility issues are somewhat ironic in that if you are going to such great lengths to immediately react to new accessibility issues, you would simply ensure you have training and processes in place to not introduce issues
Also, companies selling scans have a tendency to inflate their capabilities. While helpful, scans are extremely limited in how many issues they can reliably flag (approximately 25% of WCAG 2.1 AA issues). In fact, most companies never reveal how problematic false negatives (where scans return no errors but issues exist) can be.
Though it is a complete misnomer, many website owners now mistakenly refer to scans as ADA website compliance checkers even though scans can’t reliably flag the overwhelming majority of accessibility issues.
Another type of overlay in the accessibility industry is called a custom overlay.
Although a clear step above overlay widgets, custom overlays are still weak products for making a website accessible because they do not fundamentally remediate the code or the content and still require users to activate them and/or know to activate them.
And this means plaintiffs lawyers may disregard them just like they do overlay widgets.
Also, custom overlays are prone to malfunction, especially during code updates. This necessitates cautious handling by developers, as small changes can disrupt their functionality. Such fragility requires continuous maintenance, highlighting their instability as a dependable accessibility solution
At best, custom overlays provide a semblance of doing “something” for accessibility; optimistically, they might be thought of as a temporary “stopgap” by some buyers.
Given the practical and technical cons along with the tremendous expense, custom overlays are bad values.
ADA Website Compliance Resources
The good news is there are many resources that can help you make your website accessible and follow best practices for compliance.
My WCAG 2.1 AA checklist and guide explain the Web Content Accessibility Guidelines in plain English and are completely free. My WCAG 2.2 checklist and guide are also available.
Would you like to have me teach you WCAG?
Sign up for the WCAG Course and you will have access to video and text explanations for every success criterion for WCAG 2.1 and 2.2 AA. The course also contains a downloadable and customizable checklist in Excel spreadsheet format.
ADA Compliance Course
Why not reduce your risk of a lawsuit while work on accessibility?
The ADA Compliance Course tells you exactly what to do, including what your strategy should be, what 15 issues to prioritize, what order to work on them, and detailed instructions on how to find and fix each issue.
ADA Compliance Program
Would you like a done-for-you service you can trust to audit your website, remediate the code, and conduct user testing?
The ADA Book
Can you guess who wrote this guide on ADA compliance and website accessibility?
It’s me, Kris Rivenburgh, the author of The ADA Book.
You can buy The ADA Book on Amazon to learn even more about the legal and practical side of ADA compliance in the digital world.
Did you find my ADA website compliance guide helpful?
If so, I’d greatly appreciate you sharing the link with your family, friends, and network.
Thanks so much and definitely let me know if I can help you.
Visit the Accessible.org homepage for more information on our done-for-you ADA compliance and website accessibility services.