For both brands and sellers alike, web compliance typically means adhering to trade standards of conduct and advertising established by the Federal Trade Commission. Very rarely does the notion of web accessibility for consumers with disabilities enter their minds.
Yet between 2017 and 2019, 66 percent of the top 500 internet retailers were named in lawsuits filed on behalf of the Americans with Disabilities Act (ADA) with over 40 percent facing multiple lawsuits. A recent study from Usable.net found that over 77 percent of the 3,550 digital accessibility cases filed in 2020 specifically cited both major retailers and small businesses.
How does the ADA affect web accessibility? Can e-tailers protect their business? And what steps should you take to ensure your eCommerce business adheres to ADA standards?
Public Accommodation, the ADA and Web Compliance
The Americans with Disabilities Act governing discrimination against individuals with physical and mental disabilities was formally signed into law in 1990. Title III of the ADA specifically requires newly designed and altered “public accommodations and commercial facilities to be readily accessible to and usable by individuals with disabilities.” While Title III has traditionally been interpreted by retailers to be applicable solely to physical accessibility, a number of federal and US Court lawsuits have determined that the Act now applies to websites and mobile apps allowing any form of commercial transaction.
What this means for eCommerce is that websites and listings should now adhere to certain standards which permit full access, effective communications and meaningful accessibility to all shoppers, with prominent examples being consumers with visual impairment, seizure disorders or ADHD. While sites and listings should adhere to specific accessibility standards, they’re not necessarily required to. Web accessibility has yet to be mandated by state or federal law. Yet over 2250 lawsuits related to web accessibility were filed in federal court under Title III in 2018—an increase of 177 percent from the previous year.
Web Accessibility and Online Retail
For many merchants on Amazon, web accessibility generally will not be a concern. In fact, Amazon has made accessibility a priority by establishing guidelines and features specifically designed to accommodate individuals with disabilities. But merchants and brands maintaining an off-Amazon presence can be particularly vulnerable to discrimination lawsuits since privately hosted sites can be considered a form of public accommodation.
Title III of the ADA can be interpreted fairly broadly. While it implicitly states that requirements include “the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation,” that requirement was published well before digital retail became commonplace. Nonetheless, the Department of Justice has indicated as early as 2018 that public accommodation as covered under Title III also includes websites and mobile apps, even in the absence of affirmative regulations; most recently in a landmark 2019 US District Court case in California against Domino’s Pizza, which affirmed the rights of visually impaired consumers to sue the pizza chain for failure to comply with ADA standards.
More recently, the Online Accessibility Act was entered into Congress in February. The bill would add an additional Title VI to the ADA to prohibit discrimination against individuals with disabilities by any customer-facing website or mobile app—part of which would be accomplished by enacting mandatory standards known as Web Content Accessibility Guidelines (WCAG).
Web Content Accessibility Guidelines
Web Content Accessibility Guidelines were established by the non-profit World Wide Web Consortium as part of an initiative to serve online accessibility needs of individuals, organizations and governments worldwide. While not yet formally included as a resource in the ADA, WCAG are widely considered to be technical standards which help meet the required specifications necessary to accommodate individuals with disabilities.
The 13 guidelines contained in WCAG 2.1 can be summed up by four key criteria:
Perceivable: Content should be presented in a way that enables easy understanding; as an example, alternative text describing an image’s meaning or closed captioning on video.
Operable: Visitors with physical disabilities should be able to use and interact with a website or app. Sites should be navigable using only a keyboard, not a mouse.
Understandable: All information should be able to be read easily. For example, a site should indicate any text in a foreign language so it can be pronounced by a screen reader.
Robust: The site should be compatible with virtually any browser or technology. The site’s source code should be well-formed, so users don’t encounter display errors or issues with assistive technology.
While numerous solutions are available which promise compliance with WCAG standards, many are powered by artificial intelligence. Website navigability and delivery is highly nuanced and complex, and there are a number of variables which can’t be easily addressed by AI. Human testers can only partially ensure optimal delivery. But as developments in both delivery and design continue to be adopted at a rapid pace, e-tailers will need to keep up with changes regularly to ensure their site is accessible to all users across both web and mobile applications.
Revisions to section 508 of the Rehabilitation Act of 1973 now requires federal agencies to adopt WCAG 2.0 guidelines for web accessibility. Yet as the number of Title III related lawsuits continues to increase, private commercial entities are strongly advised to adhere to WCAG standards to both protect their assets and provide ease of accessibility to all users.
Inclusiveness and Web Commerce
Equal web access should not be considered a privilege to users, but a right. You may have developed a high performing and content rich site which is both informative and engaging. But is it engaging to all users? 61 million Americans live with some form of disability; and while they may not always seem severe enough to warrant a complete overhaul of your online presence, inclusiveness is a standard of web commerce in 2021. It’s the rule, not the exception.
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