February 22, 2023
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If you sell online in the US, you need to be aware of The Americans with Disabilities Act (ADA) and how plaintiff attorneys use it to target your online store. Numerous brands are facing lawsuits for not meeting the Web Content Accessibility Guidelines (WCAG) requirements, the most referenced global standard for digital compliance. Let’s look at what ADA is, and how to test for the WCAG success criteria.
This post is for educational purposes only. It is general information, giving a general understanding of the law, not specific legal advice. Our blog should not be used as a substitute for legal advice from a licensed professional attorney in your country or state.
Note: this post may be a little long, but it’s definitely less painful than the consequences of violating ADA law. We recommend seeing it out to the end.
The Americans with Disabilities Act (ADA) is a Civil Rights law that was signed back in 1990, to prevent discrimination against disabled persons in the US. This accounts for a huge chunk of people that’s only expanding.
There are currently 61 million Americans and 1 billion humans globally that have a disability (be that visual, auditory, physical, or cognitive). 10,000 Baby Boomers turn 65 every single day in the US, meaning by 2030, there will be 71 million US citizens aged 65 or over.
The ADA law was introduced to improve the lives of these individuals, and covers 5 main areas.
Title I, employment (e.g. equal opportunity, reasonable accommodations)Title II, state and local government services (e.g. public education, public transport)Title III, public accommodations (e.g. stores, banks, restaurants, theatres)Title IV, telecommunicationsTitle V, miscellaneous provisions
Now, you might be thinking ‘where does my online store come into this?’. And well, you’re not alone... in fact, there’s been some confusion over the years. To clear this up, let’s take a closer look at Title III, Public Accommodations. This is the part requiring businesses make ‘reasonable modifications’ to their policies, procedures and infrastructure, in order to accommodate those with disabilities.
As the ADA was put in place in 1990, long before the internet was used commercially, the phrase ‘publication accommodations’ solely referred to physical places, like bricks-and-mortar stores. In more recent years, however, there’s been lots of noise challenging whether Title III should acknowledge online accomodations, too. After all, digital content is a type of ‘public accommodation’ and disabled persons should have equal access to apps, websites, and online stores.
“Generally, courts have held that a website of a public entity is also covered by Title III of the ADA and in cases of online-only businesses, it is also widely accepted after court rulings.
Companies now understand it is possible to allow everyone into the digital audience to access their goods and services.” explains Michele Landis, Co-Founder of Accessible360, (A360).
Because most courts agree that websites are accountable under Title III and other state Civil Rights Laws, it is this section we’re seeing repeatedly cited in Demand Letters and lawsuits involving online retail.
From a moral perspective, there’s really no questions asked. It’s the right thing to do. Giving those with disabilities equitable access to your brand’s online content means you’re playing a part in improving the quality of life for literally millions of people. And as reliance on your brand’s online shopping channel is greater than ever before, you’ll be having an even bigger impact on even more people.
But it’s not just a matter of morals, there are huge financial benefits to this as well. The spending power of those with disabilities is estimated at $544 billion dollars. Democratizing your online store opens your doors to a much wider pool of potential customers — including a retained, aging customer-base, more vulnerable to developing disabilities. And as we know, lots more traffic accessing your store can mean lots more other great things, like awareness, sales... you know the sorts we’re talking about. Why wouldn’t you want that for your brand?
If the positive reinforcement isn’t enough, know this: having an accessible online offering is far more than just a nice-to-have, it’s now compulsory.
Note that the law firms that are representing plaintiffs are looking for a win, and so are more likely to focus on businesses with a legal and physical presence in the US, where it’s easier to get to court. That said, even if your site is merely visible in the US and hence you do sell online to US customers, you’re still going to be at risk.
Since lawsuits started emerging, they’re popping up all over. We’re hearing of a frightening number, even including brands who have attempted to self-certify compliance through slippery automation tools (we’ll get onto these). US lawyers are chasing these cases and many brands are being caught out — don’t be one of them.
For those targeted by the ADA and other laws, the financial implications aren’t pretty. A Demand Letter alone would cost your organization a minimum of $10,000 to settle. And these cases can quickly rack up — we’re talking up to 6-figure damages here, if subject to the Unruh Civil Rights Act (carrying a $4,000 fine per access violation, plus attorney’s fees). Trust us when we say digital accessibility really isn’t something to ignore.
The global pandemic has only cranked up the heat. COVID-19’s immediate and anticipated long-term effect of a widespread greater reliance on digital channels has sparked higher demand for equitable access. And of course, more attention on website and app accessibility poses even larger risks for online businesses being targeted.
If you sell to California residents, you must comply with the California Consumer Privacy Act. If this is you, do be aware that modifications to this law now include references to accessibility, meaning that not meeting accessibility standards could constitute a CCPA violation as well. These new requirements of CCPA to note, are:
With this in mind, you should take extra steps to make sure your privacy policies and opt-out forms are definitely accessible to browsers with disabilities.
Interestingly, the Department of Justice (main enforcers of ADA) don’t actually provide any legislation that specifically outlines the technical requirements. However, with the overwhelming amount of case law, public & private settlements have, for over a decade, referenced the Web Content Accessibility Guidelines.
One landmark case is of Domino’s web accessibility. A claim against Domino’s was dismissed back in 2017, on the grounds that the government had yet to issue detail on what apps and websites should use to test for accessibility compliance. 2 years on, it was reversed — Domino’s went back to court and lost the case. The point is, a lack of specific rules issued by the DoJ doesn’t mean there are not clear guidelines and you can escape responsibility. Instead, you just have to look to other places for guidance.
Thankfully, we have some pretty handy material laid out by the World Wide Web Consortium (W3C), the community responsible for long-term web growth. Meet the W3C’s Web Content Accessibility Guidelines (WCAG 2.1 being the latest version). These are private industry standards for disability compliance on the internet, set by technical and accessibility experts, adopted widely (including by federal agencies), and often cited by the DoJ. Specifically, the guidelines within this are organised around 4 key principles (useful tip: think of the acronym ‘POUR’).
PerceivableAre the information and UI components of your website presented in a way that can be perceived by all?
OperableAre your website’s UI components and navigation operable by those using assistive technologies*? (This means understanding the different ways users access and interact with features e.g. via keyboards and scrolling)
UnderstandableIs the information and UI understandable to people with disabilities?
RobustDoes the code follow latest standards so that content can be interpreted consistently and reliably by users and their assistive technologies?
Now, there’s success criteria for each of these principles to ensure, or test, a website’s level of accessibility compliance: A, AA, or AAA — with the latter being the deepest. Level A doesn’t offer enough accessibility, and AAA is quite extreme. Level AA, however, is the tier broadly deemed ‘acceptable adherence’ by the Department of Justice, and so is the standard most businesses should look to achieve.
*Assistive technologies are what enable individuals with certain disabilities to navigate websites & apps and access the information within them. We’re talking about things like screenreader software (JAWS or NVDA on desktops), iOS’s VoiceOver or TalkBalk on Android devices, a refreshable braille display or eye retinal recognition mouses versus the typical mouse or tracking pad that abled-bodied people use.
Do note, however, that “this often misunderstood fact”, says Landis, “leads people to buy useless overlay tools or to fall prey to gimmicks, widgets or plug-ins.” “Instead, our website must be coded correctly to provide access to those who are using assistive technologies.”, she continues. In other words, your store must interact with what the customers are using.
If you have a Shopify store that sells to the US, or you have plans of building one, you’ll need to make sure it is fully usable. You should be proactive in seeking compliance — no ifs, no buts. Having a manual audit really is the only way to properly determine this, and without one, you leave yourself vulnerable. We always recommend reaching out to the digital accessibility experts at Accessible360 for this. They use a live-user auditing process to help you reach and maintain accessibility, and their work's been court-certified.
Automated scanning tools simply aren’t robust enough to be used in isolation. For instance, only 20-25% of WCAG success criteria can even be detected; an honest SaaS company will tell you this. But, we know a lot of them aren’t consistently letting people know how much of the WCAG success criteria is missed when scanning.
Don’t believe anyone if they tell you you don’t need Live-User Verification. A360 has provided Expert Witness Testimony several times in settlements and landmark cases. If you go all the way to court, you’ll want a Letter of Conformance from A360; discussing accessibility through people’s experiences tends to prove far more reliable than showing what some automated tool says. (See the Gomez v. General Nutrition Corp. case 1:17-cv-22747-MGC). Getting a specialist, Accessibility Auditing firm like A360 involved to run a thorough, manual audit is the way to go. Trust us!
The process for having your site’s accessibility audited will depend on whether you’re auditing an existing online store or an upcoming one. Of course, these are also likely to differ between service providers too, but as we recommend you go with A360, here’s an overview of what you can expect.
If you have an existing e-commerce store, a typical audit process with A360 would look something like this:
If you’re having a new e-commerce store designed and developed, the audit process with us and A360 would go like this:
If you are building a new site, please don’t underestimate the importance of WCAG compliance; new websites are frequently targeted by plaintiffs. Luckily for you, however, it’s prime time to fix any accessibility issues that might surface in the audit — post-release fixes tend to be a lot more costly. To illustrate:
Of course, there are additional steps you can take aside from the manual audit to help with compliance too. We’d recommend the following to supplement it:
Struggling where to start with this? The below template should help you write yours.
COMPANY is committed to providing a website that is accessible to the widest possible audience, regardless of technology or ability.
We aim to comply with all applicable standards, including WCAG 2.1 accessibility standards, to level AA.
If you experience any difficulty in accessing any part of this website, please contact us by emailing EMAIL, or calling us at PHONE NUMBER.
Once you’re done, create a page that can be accessed via your footer, with the link text ‘Accessibility’.
*These recommendations come from M. Landis, Accessible360.
Oh, no. In fact, this is exactly where a lot of brands get caught: maintenance is key. We may have built or adjusted your Shopify store with accessibility guidelines in mind, a manual audit from A360 might have put it through its paces and got you a Letter of Compliance. But it doesn’t stop there. What you mustn’t forget, is to keep on top of it. Here’s a few pointers that should help you with this:
Also, some key areas around your e-commerce store that are worth keeping an eye on, include:
Don’t let it be. Worse case scenario: you have an existing store built before the change in regulations. The good news is, you’re not doomed. Adjustments can be made to increase usability and get you closer to compliance. And we can help you with that, we’re not just here to make new websites. Get in touch to see how we can help with e-commerce accessibility.
Are you a brand on Shopify selling in the US? Make sure you also read our guide to the California Consumer Privacy Act (CCPA).
