Web Accessibility Compliance in 2022: Four key takeaways from legal experts

Summary: Why is web accessibility compliance a hot topic in 2022? As was discussed in the latest webinar, it’s all about the complexity of standards and regulations, changing market conditions, and the latest Department of Justice guidance. Here’s a summary of each from our legal experts. We recently brought together expert civil rights and accessibility attorneys Eve Hill and Tim Elder, with our head of regulatory affairs Kris Rivenburgh, for an educational session co-presented by Law.com. They briefed the business and legal community about the latest in web accessibility compliance, recent case law, and recent guidance from the Department of Justice (DOJ). Here are the top four takeaways every organization needs to know for achieving and maintaining web accessibility compliance in 2022.

1. There are three major factors driving accessibility adoption in 2022.

Digital accessibility is the process of making an online experience accessible for users of all abilities, including those who rely on assistive technology. The goal is to remove barriers that would prevent people with disabilities from interacting fully with a website, mobile app, online video, digital document, or any other digital experience. In 2022, web accessibility compliance remains a business imperative for three key reasons.

First, the global pandemic drove unprecedented levels of digital adoption across all industries as organizations shifted to digital to keep products and services available throughout lockdowns. And even as pandemic restrictions ease, the collective shift into the virtual world is unlikely to reverse. Digital-first engagement will remain the primary means of engagement in many instances.

Second, companies are competing for a new generation of consumers and potential employees who are socially conscious, and they’re more inclined to support companies that share their values. Organizations that take the lead on issues such as web accessibility demonstrate they are committed to equity and inclusion, and sharpen their competitive edge in the battle for sales and talent.

Third, and most pertinent to our recent webinar, the regulatory landscape has shifted, and will continue to shift following guidance issues in March 2022 from the DOJ. According to Tim Elder, “Commerce has shifted online, and there’s a huge demand from customers with disabilities who want to engage digitally, just like everyone else. Yet companies continue to be non-compliant because they aren’t paying attention to what’s required or aren’t allocating sufficient resources toward compliance. We will continue to see a surge in lawsuits and ADA demand letters unless businesses become more proactive in auditing their digital properties.”

2. The time to invest in digital accessibility is now.

Our discussion provided useful reminders about the scale of the opportunity digital accessibility presents:

• Globally, more than one billion people are living with a disability.
• In the U.S., it’s estimated to be 26 percent of the adult population.
• This community controls an estimated annual spending power of $2 trillion.

Not only is the disability community a substantial — and growing — segment of the population, but disability impacts every community, regardless of gender, race, or socioeconomics. By ensuring your digital experience is accessible, you’re creating a more inclusive experience, actively catering to all consumers, and benefiting from enormous commercial possibilities. On the other hand, organizations that don’t prioritize web accessibility compliance face the risk of legal action for failing to comply with anti-discrimination laws.

Globally, there are a variety of digital accessibility laws that may apply, depending on an organization’s location and size. In the U.S., there are both federal and state laws that protect the rights of people with disabilities, many of which apply to the digital world. During 2020 and 2021, plaintiffs filed approximately 5,400 digital accessibility lawsuits in the U.S., and that number is expected to increase year-over-year. Eve Hill adds, “This is a civil rights issue about the equality of access for people with disabilities. Not thinking about accessibility, and neglecting to design experiences with the needs of people with disabilities in mind, keeps them out, and that’s discrimination.”

3. The DOJ is taking digital accessibility seriously: further rulemaking is likely on its way.

There are two main laws in the U.S. that impact web accessibility compliance: the Americans with Disabilities Act (ADA), and Section 508 of the Rehabilitation Act. The ADA doesn’t specifically address digital accessibility because it was enacted before the internet went mainstream. However, case-law precedent and DOJ enforcement over the years have made it clear that the ADA does apply to the digital world.  Further, the latest guidance from the DOJ makes clear it will continue to prioritize web accessibility. And while the DOJ has stopped short of putting regulations in place, Tim believes the latest guidance is merely a placeholder for future rulemaking. “I believe this guidance is just a gap filler to ensure that when a proposed regulation comes out, there’s no misunderstanding that the lack of a final regulation means that websites aren’t covered yet. This guidance is setting that standard as a placeholder. Bottom line, don’t wait to make your website accessible.”

In very general terms, the ADA applies to private entities, and Section 508 applies to government agencies and vendors doing business with government agencies. Dig a little deeper, though, and things get a lot more complex. Are purely e-commerce brand websites subject to accessibility standards? If a Texas-based e-commerce site is accessed from California, what law applies? And does a website need to be associated with a physical place of business? The answers aren’t always clear-cut, and there are differences in how the U.S. circuit courts have interpreted the laws. While every circuit court to address the issue so far believes websites need to be accessible if you have both a physical location and a website, some circuits have indicated indirectly that a website must be accessible even if there is no physical location.

Legal opinions will continue to evolve in the coming months and years, and many thousands of new lawsuits will likely be filed while we wait for greater clarity on the regulations. According to our panel, there’s only one sensible course of action: aim to comply with the highest standard rather than trying to second-guess the courts. If your organization is sued, it’s going to hurt both your wallet and your consumer relationships.

4. WCAG conformance is key, but the practical user experience is paramount.

To comply with the ADA, you need to ensure that your digital properties, such as web content, ensure effective communication with people with disabilities. The DOJ’s guidance names the Web Content Accessibility Guidelines (WCAG), alongside Section 508 standards, as providing “helpful guidance” on how to achieve that standard. WCAG is a single, common set of technical standards for web accessibility that is repeatedly referenced in both legislation as well as court settlements and should be seen as the benchmark.

To conform with WCAG (as a significant step in the web accessibility compliance journey), you’ll need to rigorously test your digital content using both automated tools and manual testers. The automated tools provide a great baseline, finding and identifying common WCAG errors. From there, expert testers with extensive knowledge of both technical standards and the practical use of assistive technologies will help identify other barriers, providing guidance to fix them. And because both the WCAG standards and your content will continue to evolve, it’s a best practice to embed ongoing accessibility testing into your digital workflows.

According to Kris Rivenburgh, “The best approach is to identify the most important pages or screens within a digital experience and have experts test those user paths. For example, on an e-commerce site, don’t just check your homepage. Test the checkout flow, which includes adding an item to a cart, navigating to the cart page, and successfully entering payment information. Focusing on the critical flows that would prevent or impede access to content or functionality will make a significant impact on the overall user experience.”

Most consumers simply want equal access to your digital content. An organization that is actively committed to digital accessibility, and can demonstrate a clear plan and roadmap to achieving this goal, will mitigate their legal risk. And web accessibility compliance goes beyond just your own website. If you work with digital product vendors, you should require them to show proof of accessibility conformance before integrating that product into your experience. If not, you’re increasing your risk of being sued. Kris continues, “You—as the owner, operator, and controller of a website, app, or other digital product—are ultimately responsible for any integrations that are part of your experience. This is why it’s wise to update your accessibility policy to account for the procurement of accessible products and services.”