Before we get started, let me make one thing abundantly clear. I am NOT a lawyer. Heck, I don’t even play on the internet anymore. Okay. I’m kidding. About the ‘anymore’ thing. And I’m not offering a legal opinion nor even a quasi-legal one. I’m just trying to sift through this because a friend of a friend recently got served because their website wasn’t “ADA compliant.” And if you keep reading, you’ll soon see why there are quotation marks a few words back.

Further, let it be noted that I am in no way, shape, form or fashion even remotely opposed to whatever steps the ADA (or any other organization) has taken, or is taking to promote accessibility to anything in the public realm. Accepting that we can rightfully agree on what the definition of ‘public’ might be.

So on with it then.

Over the last few years, there has been a consistent and significant uptick in the number of lawsuits filed in federal courts regarding website accessibility under Title III of the ADA. 2021 saw a record high with over 11,000 cases being filed. And even though there was a noticeable decrease for the 2022 mid-year filings – compared to 2021 mid-year – there’s still a need for vigilance.

What matters to whom

From what I can determine, there’s a fair amount of confusion – especially for the layperson – about what laws are applicable and to whom they apply. There are sections that seem to be relevant and are often obliquely referenced – like Section 508 – but 508 is not part of the ADA. Rather, it’s an amendment to the Rehabilitation Act of 1973 and requires federal government websites to be safe and accessible for people with disabilities.

Perhaps because of 508 and not so very long ago – like yesterday – many of us thought that only websites owned and operated by government entities or those that received federal funding needed to be ADA compliant. Or maybe it was something else we read or heard. Whatever the source of our beliefs, it seems we may well have been led astray Timmy.

And the most confusing part for me is that the Americans with Disabilities Act Title III, while the springboard for most action, does not appear to be the basis for the majority of filings. When I downloaded the PDF referenced below, I found references to ‘website(s)’ and ‘web site(s)’ just 24 times. In 266 pages. And generally in context of “guidance.” I confess that I did NOT peruse the entire document to find those occurrences. I merely did a search to hasten the process. Not to mention that it was last revised in 2010, near as I can tell.

Click here to view or download the Title ADA III PDF mentioned above.

While there were several references to accessibility standards, the greatest takeaway for me was the next-to-last “web site” reference that stated:

“The Department did not issue proposed regulations as part of its NPRM, and thus is unable to issue specific regulatory language on Web site accessibility at this time.”

Further reading and research showed that ADA Title III is clearly NOT the defining document that folks are using on which to base their lawsuits or threats thereof. It seems to only act as a launching pad.

Different place, different rules

For instance – fully half of the lawsuits regarding website accessibility filed in the US in recent years were initiated in California. They have a thing out there called the Unruh Act that allows plaintiffs to get $4,000 in statutory damages for every incident of discrimination. Without ever needing to prove actual injury or harm. New York State and Florida apparently have some similar laws on the books as they are the second and third sources of suits filed under ADA Title III.

Another bit of something I dug up somewhere asks and answers the question about the need for compliance with a resounding “definitely yes.” Its sole reason for boldly so stating is that you should adhere so you can avoid dealing with demand letters and lawsuits. How noble.

Another source simply says that in most cases, yes. Especially if your site represents a state or local government, or receives funding from one, or merely if it represents a business.

But does your website need to be ADA compliant? Well, the short answer is “It’s clear as mud Timmy.” In the several hours that I’ve been researching that very topic, I’ve changed my opinion at least three times and I think I feel a migraine coming on.

Better safe than sorry?

At this point, with all that from above and more swirling around in my head, I’m thinking that there’s not really a downside to compliance and it seems like the right thing to do. And given that we live in an overly litigious society where so many seek recompense even if there is no actual harm. Nor even proof of harm if you live in California.

Another item I read cited a case that was thrown out because the plaintiff wasn’t able to prove that they went to a particular website with the intent to actually patronize the company that owned and operated the website. They were just lookin’ to make trouble. That case went to a jury. (Watch out for your peers Timmy – they’ll turn on you.) But this appears to be the exception rather than the rule.

It also seems wise to take the necessary steps to be ADA compliant because if one does get sued, the outcome matters largely on which district, circuit, federal or whatever other kinda court hears the case and/or handles the appeal. The courts are figuratively (and literally) all over the map with their rulings. What works for you in Texas might work against you in Tennessee. It’s all about interpretation I reckon. That’s just one of those things about law. And the fact that our legal system is insanely complex.

And speaking of all over the map. There’s also the issue of whether a company maintains a brick-and-mortar business. It seems more likely than not if it does, the courts are ruling that any website associated with that presence needs to be ADA Title III compliant. But do businesses without a physical location need to adhere as well? Once again, the jury is still out on that one – and it matters largely where the case is litigated.

What this means for you

So how do you make your site ADA compliant and to what standard is it judged?

You see, that’s a whole ‘nother can of worms because the folks who initially came up with ADA Title III weren’t very specific, as previously noted. But near as I can figure, they do have some sort of a relationship with the folks who crafted the Web Content Accessibility Guidelines (WCAG). And more importantly, the courts appear to be relying on that standard (at least in part) as cases are litigated. I started reading that document earlier and I’m pretty sure I popped a tiny vessel in a non-essential portion of my brain doing so. (Maybe I can sue ‘em.)

But here’s another piece of the puzzle that just doesn’t fit for me. While the WCAG 2.0 AA standards are mandatory under other closely related US laws, they are considered a “voluntary technical standard” under ADA Title III. And noncompliance with them doesn’t necessarily mean you aren’t in compliance with the ADA. That gray enough for you?

I’m hopin’ maybe you can empathize with my confusion at this juncture…

Finding the best partner

So what’s the surest way to ensure your site is ADA compliant? Best idea we came up with was to use one of the services that audit your site for compliance and tell you what to fix. After delving into who does what best, we found what we believe is the best option for our clients and us – the service provided by an outfit called UserWay.

I had a lot of questions when we started our search. Things like if you use a particular service, how deep is their commitment to you if you do get served? What if you missed one some small something (based on their recommendations somewhere), are they gonna tell us we’re on our own Timmy? Still wondering what their TOS and licensing agreements and related legal things look like. But overall, we concluded that they had a great handle on the whole process.

So we installed UserWay on our site and have seen just how it works. It finds and fixes things we never would’ve known needed fixing, and it automates the process admirably. After it makes recommendations for remediation, we’ve found that there are tweaks that can be made, but that too is simplified through the interface. A human touch still matters.

And after all my research into ADA compliance, I still don’t have a definitive answer for why a particular site needs to be compliant and another doesn’t. I do know one thing for sure. The lawsuits won’t stop anytime soon. Nor is it likely they’ll slow down significantly until the tide turns and the plaintiffs start losing on a regular basis – which is a remote possibility at best.

Given that reality, it feels like doing something – for legal reasons or elsewise – is a much better idea than doing nothing. And erring on the side of caution seems like a pretty good idea.