Disclaimer: I’m not a lawyer. This isn’t legal advice. If you need legal advice for your website accessibility risk, you should consult a lawyer who specializes in it.
Part 1: Your lost revenue risk
In business, there are all sorts of risks involved when a customer has a bad experience. They can leave negative reviews, they can tell others about how bad their experience was, and of course, they usually don’t purchase from you.
For example, approximately 12-14% of the population is estimated to have Irlen syndrome. Some very basic checks on your website color palette can make your website readable for them. Isn’t a little time spent on color worth 12-14% of your customer base?
It doesn’t have to be all or nothing
From a business perspective, you can take some steps towards reducing your website accessibility risk and improve the website experience for a significant portion of your customer base, even if you don’t meet all of the WCAG guidelines.
We offer several levels of website accessibility work from focusing on being friendly to visitors to complying with WCAG 2.1 level AA.
Some key points you can check without going into the full WCAG guidelines include:
- Picking out readable fonts & colors (here’s my guide on that)
- Check that your website can be navigated by keyboard
- Skip links to bypass navigation for keyboard users (one or two, not six — remember keyboard users will have to see these on literally every single page)
- All elements have a visible focus (this is available by default on a browser, but many websites have code that overrides that)
- Avoid anything that autoplays (video or audio)
- Avoid sliders & carousels (they actually can reduce your conversion rates)
- Enter your website content in a future-friendly, SEO friendly, and accessible manner
- Don’t have any content hidden requiring hover (there is no hover state on touch devices, and remember some people have desktop computers which touch devices)
- Videos & audio have easy to use controls (both with & without a mouse)
- Avoid ambiguous text (15 repeats of “learn more” is both annoying and confusing)
A situational disability is something temporary. Here are some examples of situational disabilities and how they can affect users and your website accessibility risk:
- Headaches & migraines – low concentration, trouble following simple directions, difficulties with colors, can’t tolerate sound
- Loud coffee shop – can’t play audio, can have trouble concentrating
- Sleeping baby – can’t play audio, don’t want any screen flashes
- Injured hand or arm – using computer one-handed, probably with non-dominant hand (poor coordination, may have to use keyboard navigation for their first time ever)
- Stressed or in physical pain – loss of focus, loss of patience, trouble following simple directions
As an example, my husband sometimes picks up subs from a place that has an easy mobile app. He can order from his phone just before he leaves work. Another sub place lost his business because he couldn’t easily order from his phone — the app was just too frustrating to navigate. It’s the end of the workday, he’s tired and hungry and just wants his food.
So, making your website more friendly to users with disabilities generally ends up benefiting all of your users, disability or not.
Part 2: Your legal risk
The first thing to understand when it comes to website accessibility risk & the law is that it is mostly a framework and guidelines and best practices. Unlike the Americans with Disabilities Act (ADA) in physical locations which is very specific about what is and is not accessible, the internet is a bit messier.
The second thing to understand is that enforcement of this has been left to the civil courts. This means it’s private law firms going after websites. There are two groups of these law firms going after websites: the crusaders and the opportunists.
- Crusaders: These are folks out on a mission to make the whole internet more accessible. They are frequently blind users who use both screen readers and keyboard navigation. The law firms they work with do it for billable hours and count on most cases going to settlement where the business being sued pays the legal fees for all lawyers involved.
- Opportunists: These are folks who take advantage of trends. They show up anywhere success has been had in law suits and blanket sue hundreds of companies. Again, they are going for legal fees and settlement payments.
The third thing to understand is that the US Supreme Court has not ruled on this, and only some of the Circuit courts have. This means it’s a murky area based on where your business is based & where your customers are.
How they test your website before suing you
I can’t tell you how every one of the law firms tests your site for website accessibility risk, but I can tell you how many of them do it. Quite a few of the lawsuits have reported the following as their testing procedure:
- Use WAVE or AXE to test your site and just list whatever the tool says you failed for level AA.
- Have a blind user test your site using a screen reader and keyboard navigation for up to 1-2 hours.
Section 508 vs ADA
Section 508 of the Rehabilitation Act refers to accessibility for US Federal government websites as well as certain organizations which receive funding from the Federal government. If you do not receive income from the federal government or state governments, then it’s generally safe to say you don’t need to worry about section 508. If you do receive government funding, then you should contact the funding source and get a letter in writing whether you are or are not subject to section 508.
The Americans with Disabilities Act (ADA) applies to most organizations that have a physical location. However, whether it applies to your website is a bit up in the air depending on where you & your customers are. Below I try to break down your website accessibility risk.
Where your customers are matters
There was a recent case where a company based in Seattle and online-only thought they did not have to be ADA compliant. That was until they were sued in the state of Massachusetts. The judge in Massachusetts ruled that because 3% of their sales were in the state and they sold a UMass-specific gear, they fell under Massachusetts laws and the ADA applied.
So if you are an online store, where you have a nexus of customers matters. Now, unlike tax nexus, there aren’t specific laws that define accessibility nexus. However, if I were running an online store I would assume that if I have tax nexus, then I have accessibility nexus.
Important reminder about website accessibility risk for lawsuits
Just because a precedent has been set in your location doesn’t mean no one can sue you. Even if you win the suit, you can still end up having paid a lot of money and spent a lot of time defending yourself. In many cases for smaller businesses, it is less expensive to make accessibility fixes than it is to fight even a single lawsuit.
The first step is knowing how accessible or inaccessible your website is. Get an accessibility audit and find out, rather than wondering whether it is or isn’t fine. Let’s face it, you probably don’t have 100+ hours to spend becoming an expert on website accessibility.
US Circuit Courts
As there is not currently a ruling from the US Supreme Court (although they did decline to hear the appeal from Dominos after Dominos was ruled to be required to comply with the ADA), whether websites fall under the ADA is very region-specific.
At some point, there may be a Supreme Court ruling or more likely an update to the ADA law which will specifically speak to website accessibility risk. Until that point, it’s going to continue to be a bit of a mess. Table 1 gives a general summary by state.
|Lower Risk||High Risk if tied to physical location||High Risk||Unknown Risk|
|AL, DE, FL, GA, KY, TN, MI, NJ, OH, PA||AK, AZ, CA, ID, HI, MT, OR, WA||IL, IN, MA, ME, NH, NY, RI, WI||AR, CO, CT, DC, KS, IA, LA, MD, MN, MO, MS, NC, ND, NE, NM, OK, SC, SD, TX, UT, VA, VT, WV, WY|
1st Circuit (ME, NH, MA, RI): High risk
In one of the more famous lawsuits, the National Association of the Deaf v Netflix, the ruling was that Netflix was a place of accommodation and subject to the ADA. Netflix was required to add captioning for all videos and paid $755,000 for legal fees and damages.
Massachusetts has become a bit of a hot spot for website accessibility risk and many national eCommerce websites are being sued there.
3rd Circuit (PA, NJ, DE): Lower risk
The third circuit has held that “places of accommodation” are limited to physical places (Ford v Schering-Plough Corp and Peoples v Discover Financial Services, Inc).
6th Circuit (MI, OH, KY, TN): Lower risk
The sixth circuit has ruled in the past that public accommodation limited to physical places (Parker v Metro Life Ins Co)
7th Circuit (WI, IL, IN): High risk
The seventh circuit has ruled a few times that websites are places of accommodation, especially if they are eCommerce related (Doe v. Mutual of Omaha Insurance Co).
Illinois has been known as a very litigious location, and it still is. From 2018 to 2019 the state of Illinois saw a 171% increase in website accessibility lawsuits.
9th Circuit (CA, WA, OR, AK, AZ, NV, ID, MT, HI): High risk if tied to physical location
The US 9th Circuit court covers the west coast of the US. There has been a circuit-level ruling there that businesses that are strictly online and have no attachment to a physical location do not need to be ADA accessible. The notable case here is the Dominos Pizza.
In California, you can receive fines for every person who was unable to use your website. This is part of what makes California such an attractive place for these website accessibility lawsuits.
11th Circuit (FL, GA, AL): Lower risk
The US 11th Circuit court covers the southeast US and has ruled that websites are not places of physical accommodation for the most part. For example, they ruled that a grocery store chain did not need to have an accessible website as no purchases could be made there. Those operating eCommerce may still fall under ADA. Florida still sees quite a number of ADA lawsuits.
New York: High Risk
In New York state there has been a split of rulings by different judges. Some have used “not one of the 12 places of accommodation” to say that the ADA does not apply. Some have said that if tied to a physical location, ADA does apply. There has not been a circuit-level ruling that I could find, so right now, it’s very much down to what judge you get.
New York is currently the leading location for the highest ADA website accessibility risk due to the sheer number of lawsuits being filed. It is likely based on current rulings to follow California’s approach that if your website is tied to a physical location that would fall under the ADA, then your website probably does.
The rest of the country has been quieter than the locations already mentioned, but all it takes is a single individual with disabilities for a significant number of lawsuits to start, such as the serial lawsuit filer who filed over 500 claims across several states.
Summing up your website accessibility risk
It’s just good business not to discriminate against people. Here are some stats to think about before you say “oh, it’s not my customers”:
- 40% of adults over 65 in the US have a disability
- 26% of adults in the US have an officially diagnosed disability (the real number is likely higher)
- 20% of people in US have dyslexia (some people with dyslexia use a screen reader, especially for longer text)
- 12-14% of the population has Irlen Syndrome (some use a screen reader, others need color adjustments)
- 11% of adults in the US have a cognitive disability
- About 10% of caucasian males are color blind
- 7% of adults have severe dexterity difficulties (many of them use keyboard navigation)
- 6% of adults in the US have serious hearing difficulty (they need captions)
- 5% of adults in the US have serious vision impairment (many of them use keyboard navigation)
Based on this information, you probably have a lot of customers with some level of disability, and since a number of disabilities are “invisible”, you probably don’t know how many you have.
Taking some basic steps including getting an accessibility audit done and correcting the big impact items can significantly improve your website for all visitors, which means happier customers.
At the end of the day, the question is really, “do you want your website to be friendly to people?”
Your next steps for website accessibility
There are two things you can do today to help reduce your website accessibility risk for lawsuits and business impacts.
- Start entering your content the right way. Most website owners and content managers enter content in a way that requires future rework, is not search engine suited, and is inaccessible. If you do one thing, it should be fixing how you enter content going forward.
- Get a basic accessibility audit of your website to find out how good, bad, or ugly it is.
Website accessibility audits don’t have to cost an arm and a leg and don’t obligate you to continue forward with remediation services. But they are a great first line to determine how much risk you have.
Do you have any relevant US lawsuits you’d like to see included here? Please drop us a comment below with the case and state it was in.