ADA non-compliance penalties were barely imagined in 1990, when the Americans with Disabilities Act (ADA) was first signed into law, long before the digital world raised new compliance questions. The internet was still in its relative infancy.
Under the amended and updated rules, the Web Content Accessibility Guidelines (WCAG) 2.0, as set forward by the World Wide Web Consortium (W3C) is regarded as the industry standard on accessibility for all public-facing, as well as some non-public facing, official agency business content.
Your website is the digital display door, serving as an extension of your business. For many companies, it’s where all commercial activities take place. This is the reason why web accessibility has become a priority for companies worried about ADA non-compliance penalties and the liability risk of inaccessible websites. So, what is the bottom line? If your app or website is not ADA compliant, you are provoking fate, because ADA non-compliance penalties and the risk of being sued are real. You can check it with the growing number of lawsuits being filed for inaccessible websites!
In 2018, there were more than 2,200 federal lawsuits claiming company websites were not compliant with the Americans with Disabilities Act (ADA) of 1990. That’s a massive 177% increase over 2017. In Q1 of 2019, already the filings are up by 30% over Q1 of 2018.
In January, a claim was upheld that Domino’s Pizza must make its mobile app as well as the website ADA accessible after a blind customer sued Domino’s for being unable to order a pizza on said site. While the list of sued organizations keeps rising, the primary targets of accessibility lawsuits have been restaurants, food service companies, grocers, retailers, universities, and financial service providers.
Pro tips to avoid ADA non-compliance penalties
There are several websites online which feature compliance tests with simple questionnaires to evaluate your website and your exposure to ADA non-compliance penalties. Below are the most relevant topics which should be followed as a practical list of pass/fail questions adapted chiefly from a 2007 ADA compliance assessment for government sites.
- Rule 1 – Check if the top of each page with navigation links has a “skip navigation” link
- Rule 2 – See if all the links have the required text description which can be read by a screen reader (and not just the graphic image or “click here”)
- Rule 3 – Check if all the photographs, graphics, maps, graphs, tables and other images on the website currently have HTML tags. For instance, it should have an “alt” tag or a long description tag with text equivalents of the content.
- Rule 4 – Verify if all the documents on your website are available in HTML or another text-based format. For example, rich text format (RTF) or word processing format, even when it is available in another form, such as PDF?
- Rule 5 – If your website has online forms, check is the HTML tags describe all of the controls (it should include all text fields, drop-down lists, checkboxes, and buttons). It will help physically challenged people to complete and submit the forms.
- Rule 6 – Make sure the default setting in drop-down lists on the online forms explain the data being requested instead of displaying a response option (viz, “your age” instead of “21-35”)?
- Rule 7 – If a webpage has data charts or tables, make sure to imply HTML to associate all data cells with column and row identifiers
- Rule 8 – Assure all video files on your website have audio descriptions of the displays. This will provide permission to information to people who are blind or have low vision.
- Rule 9 – Synchronize all video files on your website with written captions of spoken communication to provide grants to those who are deaf or have difficulty in hearing
- Rule 10 – All audio files on your website must have written inscriptions of spoken information synchronized with the action to produce access to people who are deaf or challenged of hearing.
- Rule 11 – Evaluate if all webpages are designed so they can be viewed using visitors’ web browser and operating system settings of the set colour and font.
- Rule 13 – Post the website accessibility policy on your website so that it’s easily seen
- Rule 22 – Your website home page must include easily locatable information, such as the telephone number and email address, which is in use in case of reporting website accessibility problems and requesting accessible services and information.
Alienating a Part of the Audience
Are you aware of the fact that 25% of the adults in the U.S., and 40% over age 65, are registered with a physical disability? The 2015 National Federation for the Blind data reveals more than 7 million adults are affected by some or other forms of vision impairment. This includes low vision, blindness, and colour blindness. More than 15% of adults in America are reported to suffer from hearing difficulties.
Studies showed two to three children out of every 1,000 are born with a detectable level of hearing impairment in one or both ears. 1 in 68 children is shown to be on the autism spectrum, while 15 to 20% of people are affected by a language-based learning disability, such as dyslexia. And this doesn’t necessarily include those with motor functioning inabilities, which makes things like moving and snapping a mouse or typing on a keyboard trying impossible.
Without a fully accessible website, you risk alienating the audience members who fall into those categories – a loss that comes before any ADA non-compliance penalties are even counted.
Being Hit with a Non-Compliance Lawsuit
ADA compliance lawsuits are growing in number, and so are ADA non-compliance penalties. A report by Insights Blog and The Seyfarth ADA Title III News has been tracking the ADA website compliance lawsuits for a few years. It shows between January 2015 and August 2017, more than 751 suits have been filed. There’s no way to be sure whether all web accessibility lawsuits have been seized, so the figures are likely to be higher.
Nearly 5,000 ADA lawsuits were filed in federal court in the first half of 2018, and the number continued to climb, reaching a 30% increase from 2017.
The chief reason for this is the deficiency of legal consensus on why the websites buckle under the Department of Justice and ADA jurisdiction. Different courts have varying interpretations of the law and what validates the claims of victims of discrimination.
Legal fees and ADA non-compliance penalties
As a business website owner, your choice should come down to spending money to secure your website is compliant and taking care that no one sues you legally. Understand that when you are sued by a person with a disability, paying for legal representation is only a small portion of the ADA non-compliance penalties you will face. Depending on the case outcome, you might have to pay the plaintiff’s legal fees, a settlement, and the cost of making your site ADA-compliant anyway. For small enterprises, this could drive closure. It thus makes sense to invest in making your site compliant with the ADA and section 508 using WCAG.
Damaging the Brand’s Reputation
Brand reputation is one of the central concerns these days. And with social media, it is easier for people to share both positive and negative experiences as and when they experience any. You may have to invest even more in a public relations firm to do damage control after an ADA compliance lawsuit, which is the hidden side of ADA non-compliance penalties. More than 90% of customers read online reviews before visiting any website, and online reviews influence 67.7% of purchasing decisions.
ADA non-compliance penalties: frequently asked questions
What are the actual ADA non-compliance penalties for a website?
For a first violation, the Department of Justice can seek civil penalties of up to $75,000, rising to $150,000 for subsequent violations, with both figures adjusted upwards for inflation. In practice most website cases are private lawsuits, where the cost is a settlement (commonly $5,000 to $50,000), the plaintiff’s attorney fees, your own legal fees, and the remediation work itself.
Can a small business really be fined?
Yes. Title III of the ADA applies to any business open to the public regardless of size, and serial plaintiffs deliberately target small restaurants, clinics and shops because they settle quickly. State laws such as California’s Unruh Act add statutory damages of $4,000 per violation on top of the federal exposure, so ADA non-compliance penalties can stack up quickly.
How do I reduce the risk of ADA non-compliance penalties?
Audit your site against WCAG 2.1 AA, fix the highest-impact barriers first, publish an accessibility statement with a contact route, and keep records of your testing. Courts and plaintiffs treat documented, ongoing effort very differently from silence, and that difference shows up directly in ADA non-compliance penalties. Our web accessibility case study shows what that documentation looks like.
Do ADA non-compliance penalties also apply to apps and PDFs?
Yes. Mobile apps, downloadable PDFs, online forms and booking or payment widgets are all part of the service you offer to the public. The Domino’s case mentioned above was about the app as much as the website.
Is there a grace period or safe harbour?
Not for private businesses. The DOJ rule for state and local governments gives them until 2026 or 2027 depending on population size, but a private company can be sued today. Waiting for a demand letter is the most expensive way to discover ADA non-compliance penalties.
So leave your worries to the experts at Ananyoo. We help you build and remediate sites to WCAG 2.1 AA, which is the surest protection against ADA non-compliance penalties. If you have a commercial website, get in touch with our team today.
Leave a Reply