The Rehabilitation Act of 1973 prohibited discrimination based on disability for federal programs, federal contractors, and agencies that receive federal funding. Section 508 of this act subsequently established the Access Board to maintain accessibility guidelines for federally funded facilities. The Access Board also produced standards for the Americans with Disabilities Act (ADA), which, passed in 1990 to, "prohibit discrimination based on disability for employment in State and local government, public accommodations, commercial facilities, transportation, and telecommunications". Title III was added to the ADA the following year to
prohibit discrimination based on disability and ensure equal access to business and nonprofit service providers. The Department of Justice, has taken the position that the Web Content Accessibility Guidelines (WCAG), developed by the World Wide Web Consortium "W3C" provides guidance and standardizarion for web accessibility.
In 1998, Section 508 was added to the Rehabilitation Act to ensure hardware, software, and electronic content, along with support documentation and services, are accessible to people with disabilities. As of January 18, 2018, compliance specifically requires agencies to provide comparable Information and Communication Technology (ICT) access to employees, as well as members of the public, with and without disabilities. While Section 508 and Title III apply to federal and commercial agencies respectively, they address related accessibility issues with identical guidelines.
The expansion of ICT accessibility requirements led to a substantial increase in associated lawsuits. In one highly publicized case, the Supreme Court upheld the 2017 Appellate Court decision that the Domino's website and mobile application were not accessible with assistive technology. The subsequent weeks indicated a significant and steady increase in the number of ADA cases filed; this trend is referred to as the Domino's Effect. The total number of ADA web and app accessibility filed claims reached one-an-hour in 2018 and similarly held in 2019. The total for 2019 was affected, while plaintiff lawyers waited for the Supreme Court decision to uphold the Appellate Courts decision. The decision is applicable to all retailers must make even virtual services accessible. It is clear the Department of Justice will continue to rule in favor of those covered by the ADA Title III, which establishes design requirements for the construction and alteration of facilities subject to the law.
These enforceable standards apply to the places of public accommodation, commercial facilities, and state and local government facilities. While this language does not directly refer to the virtual forum, the use of "public accommodation" has been ruled to imply that accessible design requirements apply to websites and apps as well.
Since this landmark case, the 2019 ADA Web Accessibility and App Lawsuit Report found that cases are being filed at a rate of one-per-hour and not predicted to decrease. As of April 2020, this prediction is supported despite the economic disruptions associated with the coronavirus disease 2019 (COVID-19) pandemic.
Accessibility and the Pandemic
Before January 2020, navigating apps and websites for ordering and delivery already created a unique challenge for people who are disabled. Since then, quarantine and shelter-in-place directives have exponentially increased e-commerce and exacerbated the scale of online business. A customer survey conducted in April 2020 by researchers at Namogoo found that consumer's online spending has increased by 56%, a trend of 75% of those surveyed expect to continue. Gibbons, PC also reported increasing accessibility demands as people rely more heavily on internet-based services. Specifically, the convenience, affordability, and ability to browse products and compare prices have led more and
more customers to visit e-commerce sites before heading to a brick-and-mortar location. As such, the average consumer spends more than $1,700 per year on online shopping  , a number that’s continuing to rise. For those who live with disabilities, online accessibility has suddenly become a most critical form of survival. The World Bank estimates that 15% of the worlds population, experiences some form of disability, and are uniquely impacted by the pandemic. As a result, the
2020 Digital Accessibility Lawsuit Report found these rates continued increasing into 2020. While the “Coronavirus Pause” reflected decreased lawsuits in March, “by the end of April, the rate of ADA-based web and app lawsuits filed in federal court returned to its previous record-breaking pace”. In fact, there were nearly 100% more accessibility cases filed in December (487) than January (284) of 2020.
Overlays and widgets are a popular and enticing alternative to organization who buy into the fear, uncertainty, and doubt (FUD) marketing schemes that some accessibility firms implement. True accessibility cannot come from widgets or overlays claiming to make your site accessible for three reasons:
- This “solution” only addresses a small fraction of the Sufficient Criteria listed in the WCAG. Overlays insert code into a website instead of remediating the offending code, which continues to limit access to specific content.
- Instead, they can invariably add issues by overriding existing assistive technology functions, limiting the user experience of a client.
- They fail to provide full and equal access to the covered portions of a website, instead they are fundamentally ‘separate but equal’ solutions. Organizations that utilize overlays and widget open themselves up to litigation not keeping them from it.
Murphy v Eyebobs, LLC
Why it matters
Doing the right thing
Compliance with accessibility is important to every organization for two reasons. First, it is the right thing to do. The World Health Organization (2018) reported that more than a billion people worldwide have some form of disability. Organizations in all fields therefore ought to prioritize accessibility for such a significant portion of the population. In doing so, organizations also benefit from what is now termed as "the curb cut effect", where any design changes in consideration for those with disabilities also increases the accessibility of others. Second, it is economically prudent. People with disabilities spend a
half-trillion dollars annually. Additionaly, 71% of customers with accessibility needs will navigate away from a difficult-to-use website. In addition to lost revenue, failure to comply with WCAG standards can result in costly legal fees. Webaim.org reports that "98.1% of homepages had detectable WCAG 2.0 Failures". Companies can spend between $15,000 and $100,000 or more solely to settle litigation associated with noncompliance. As such, proactively prioritizing accessibility guidelines enables organizations to better serve a substantial group of consumers and avoid expensive consequences.
Increase client base
Some organizations do not see the need to prioritize their site’s accessibility when it has not generated complaints but fail to realize people with disabilities may not have access to providing feedback. Other companies may deem accessibility compliance unimportant because a person with disabilities would not purchase their product or service; for instance, a blind person would not purchase flying lessons. Not only does this assumption ignore that people with disabilities can make purchases on another’s behalf, but the law states online commerce must be equally accessible to people with disabilities. Another common reason for organizations not to prioritize accessibility compliance is they already have an AI powered accessibility widget or overlay. However, less than 30% of compliance issues can be fixed using only automation, and more than 250 lawsuits were filed against sites using widgets and overlays.
- Federal Register (2018). Information
and Communication Technology Standards and Guidelines.36 CFR Vol.3, Part 1194.
- United States Department of Justice (2010). Americans with Disabilities Act Tittle III regulations:
Nondiscrimination on the bases of disability by public accommodations and in commercial facilities. 28 CFR (36).
- United States Department of Justice (Feb 2020). A guide to disability rights laws: Americans with Disabiliies Act. ADA.gov.
- United States Department of Justice (Feb 2020). A guide to disability rights laws: Rehabilitation Act. ADA.gov.
- World-Wide Web Consortium (W3C).(Dec 2008). Web Content Accessibility Guidelines (WCAG) 2.0. W3.org.
- Taylor, J. (Jan 2019). Domino's case delivers a win for web and mobile app accessibility. UsableNet
- Tyko, K. (Oct 2019). Victory for Disability advocates: Supreme Court won't hear Domino's Pizza accessibility case. USAToday
- United States Access Board (Dec 2020). Information and Communication Technology: Revised 508 Standards and 255 Guidelines. Access-Board.gov
- Etzioni, E. (May 2020). Customer Servey: How Covid-19 online shopping habits are shaping the customer journey. Namogoo
- Heaslip, E. (Jan 2020). 5 Ways to optimize your e-commerce site for mobile shopping. United States Chamber of Commerce
- Heaslip, E. (Sept 2019). A guide to building an online store. United States Chamber of Commerce
- The World Bank (Oct 2020). Disability Inclusion. WorldBank.org
- Usablenet (2020). 2020 Full year report: digital accessibility lawsuits. Usablenet.com
- Springer, T (2020). Lies, Damned Lies, Overlays and Widgets.Linkedin
- Murphy v. Eyebobs, LLC. (District Court, Western District of Pennsylvania, Jan. 7, 2021), (Case 1:21-cv-00017-RAL). adatitleiii.com
- The World Health Organization (2018). Disability and health.Who.int
- Disability Science Review. (2016). The Curb Cut Effect: How making public accessible to people with disabilities helps everyone.Medium.com
- Williams, R. & Brownlow, S. (Dec 2016). The click-away pound report 2016: Assessing the online shopping experience of customers with disabilities, and the costs to business of ignoring them. ClickAwayPound.com
- WebAIM.org (2020). The WebAim Million: An annual analysis of the top 1,000,000 home pages. WebAim.org
- Gers, T. (Jan 2021). 4 common objections when selling digital accessibility as an agency. UsableNet.com