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.
First things first: what is ADA?
The Americans with Disabilities Act ( ADA ) is a Civil Rights law that was passed back in 1990, to prevent discrimination against disabled persons in the US. This accounts for a huge chunk of people that’s only expanding, with predictions that, by 2030, 21% of US population will have a disability (be that visual, auditory, physical, or cognitive). The ADA law was introduced to improve the lives of these individuals, and covers 5 main areas.
The 5 key parts of ADA
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, telecommunications Title V, miscellaneous provisions
But how does ADA link to e-commerce?
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, 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.
Now, most courts agree that websites are accountable under Title III. It’s this section we’re seeing repeatedly come into question for the majority of lawsuits involving online retail.
So, why is it so important to make my online store accessible?
Social responsibility of ADA compliance
From a moral perspective, there’s really no questions asked. Put simply: 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. What a lovely thought.
Financial benefits of having an accessible online store
But it’s not just a matter of morals, there are huge financial benefits to this as well. Democratizing your online store opens your doors to a much wider pool of potential customers — not to mention 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 — awareness, sales, you know the sorts we’re talking about. Why wouldn’t you want that for your brand?
Legal risk associated with violating ADA law
If the positive reinforcement isn’t enough, know this: changes to law mean 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 claimants 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. But do appreciate that even if you have no legal presence in the US, but you sell online to US states, you’re still at risk.
Since lawsuits started emerging, they’re popping up all over. We’re hearing of a frightening number, even including brands who’ve self-certified compliance through slippery automation tools (we’ll get onto these). US lawyers are chasing these cases, and so many brands are being caught out — don’t be one of them.
The implications are severe
For those found to be violating ADA law, the financial implications aren’t pretty. Often, these cases result in steep federal fines (we’re talking up to hundreds of thousands of dollars here) or 5 and 6 figure damages. Trust us when we say ADA really isn’t one to ignore.
COVID-19’s accelerated the need for online accessibility
The global pandemic has only cranked up the heat further. COVID-19’s long-term effect of greater reliance on digital channels has sparked more demand for equitable online access. And of course, more attention on website accessibility poses even larger risks for online businesses being targeted.
You could be violating CCPA law too
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 in February 2020 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:
Online notices and policies must be ‘reasonably accessible’ to users with disabilities
It’s suggested (although not strictly ‘required’) that businesses comply with WCAG 2.1 to Level AA. This historically has been the court-accepted standard for ‘website accessibility’
Opt-out forms that are designed in a way that could impair a user’s ability to opt-out are prohibited. Hence, if opt-out forms don’t comply with ADA standards WCAG 2.1, they could be deemed difficult to submit, or even locate, for some disabled users.
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.
So, what are the specific requirements of website accessibility?
Interestingly, the Department of Justice (main enforcers of ADA) don’t actually provide any legislation that specifically outlines the technical requirements. Hence, compliance can seem a little hazy for some. But do note, this doesn’t forgive a business from violating obligations.
Take Domino’s web accessibility reversal as recent evidence. 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 do to comply with ADA. 2 years later? It’s reversed — Domino’s are back in court and lose the case. The point is, a lack of specific rules doesn’t mean you escape responsibility. Instead, you just have to look to other places for guidance.
Using WCAG to improve web accessibility
Thankfully, however, we do 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). 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’).
WCAG’s 4 main principles
Perceivable Are the information and UI components of your website presented in a way that can be perceived by all?
Operable Are 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)
Understandable Is the information and UI understandable to people with disabilities?
Robust Does the code follow latest standards so that content can be interpreted consistently and reliably by users and their assistive technologies?
WCAG’s success criteria
Now, there’s success criteria for each of these principles to ensure, or test, a website’s level of compliance: coming out at either A, AA, or AAA (the latter being the deepest). Level AA is the one 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 and access the information on them. Do note, when we mention assistive technologies, we’re talking about how your website must talk to them. This doesn’t mean you’re required to use/include specific technologies like word amplifiers or audible content versions on your online store. It merely means that your website must be robust enough to provide access to those who are using such technologies — in other words, your store must interact with what the customers are using.
Ensuring ADA compliance: manual audits
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’s ADA-compliant. 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 Accessible 360 for this. Their team uses a live-user auditing process to help you reach and maintain accessibility — and it’s court-certified.
Don’t rely on automated scanning tools
They simply aren’t robust enough to be used in isolation! For instance, only 20-25% of WCAG success criteria can even be detected. We’ve seen these fail time after time. And in court, it seems that discussing accessibility through people’s experiences tends to prove far more powerful than showing what a tool says. Getting a specialist third party involved to run a thorough, manual audit is the way to go — trust us.
Manual ADA audit process for existing stores
If you have an existing e-commerce store, a typical manal audit would look something like this:
Audit: scoping and advising your environment
Remediation: training and mentoring accordingly
Maintenance: ongoing monitoring and rechecks
Manual ADA audit process for upcoming stores
And if you’re having a new e-commerce store designed and developed, the audit process would go more like this:
Preview: support and advice on your designs
Enable: accessible processes — training, testing, QA
Launch: compliance support and monitoring provided during launch
If you’re in this bracket, please don’t underestimate the importance of ADA 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:
Other tips to help with ADA compliance
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:
Read up to on ADA law
Make sure your staff are trained on the latest compliance
Publish an Accessibility statement (more guidance on this below)
Reach out to disability rights organisations who can provide feedback on your store
Designate an Accessibility Co-ordinator from your development team
Make sure any new images, text boxes or checkboxes have alternative text tags embedded
Include subtitles with any video content
Include transcripts with any audio content
Make sure your store complies with various keyboard formats
Ensure your fonts are available on all operating systems (Mac, Windows)
Use code that’s comprehensible to screen readers
Writing an Accessibility statement
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, regardly of technology or ability.
We aim to comply with all applicable standards, including WCAG 2.0 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.
One you’re done, create a page on your website that can be accessed via your footer, with the link text as ‘Accessibility’.
Compliance is not the end
Oh, no. In fact, this is exactly where a lot of brands get caught out: the maintenance. We may have built or adjusted your Shopify store with accessibility guidelines in mind, a manual auditor might well have put it through its paces. You might even have the affidavit to help evidence compliance in court! 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:
Have an ongoing-maintenance plan to help with long-term compliance
Regularly assess your e-commerce website for compliance, as it’s updated and any content or features are added
Run basic automated tests with each new release
Get regular, manual, specialist audits by Accessible 360 for a more thorough check (and be sure to obtain a letter of conformance)
Keep in mind that settling one lawsuit won’t prevent another...
Also, some key areas around your e-commerce store that are worth keeping an eye on include:
Any form fields
Your colour schemes
Your mobile site
Sound like a headache?
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 .
Your key takeaways
Accessibility compliance is more important than ever — we can’t stress this enough.
Compliance is there to protect you and increase the reach of your e-commerce store .
ADA compliance must be understood as a process, as opposed to a one-off project. You can’t let the time and money of initial compliance efforts go to waste.
If the cost of ensuring compliance is putting you off, stack it up against ADA violation fines. We guarantee, it’ll start to look a lot less expensive.
The best plan is to get busy, right now.
Are you a brand on Shopify selling in the US? Make sure you also read out guide to the California Consumer Privacy Act (CCPA) .