The Importance of WCAG Compliance for Your Engagement Website
A federal District Court judge in Miami recently ruled in favor of a citizen who initiated a lawsuit against a retailer for failing to make its website accessible to blind and visually impaired users. While past lawsuits have failed to garner attention, this particular case distinguished itself because the retailer argued its brick-and-mortar stores were unique
and distinct from its online presence. The argument failed to hold water with the judge who ostensibly reasoned the stores and the website were inextricably linked. This may also be significant for any government website since the online presence is tied to the physical entity of a city hall, statehouse, or equivalent.
If You Don’t Comply You Are Vulnerable to Lawsuits
This may be a significant and precedent-setting case since it potentially paves the way for anyone who might want to follow the path of the plaintiff and launch civil suits against website operators with sites found to be non-ADA compliant. US Federal Courts have already seen a surge in filings, with the first half of 2017 witnessing a 35% increase over the previous two years combined. The idea is akin to the behavior of past ADA litigants who have filed thousands of cases against brick-and-mortar business owners for potential ADA accessibility violations. In some cases, lawsuits were allegedly launched by litigants who simply viewed the business on Google Maps. So far, the biggest targets have been retail and hospitality, but it’s only a matter of time before local governments are targeted. The reality is this is probably not going to go away, but rather escalate in the coming months and years. The best advice is to make sure your site and the cloud-based tools you use to engage your community are accessible. Don’t put effort into trying to defend what you’ll inevitably be required by law to fix.
ADA Is for the Greater Good of ALL
While the short-term some may be presented with challenges and frustrations, in the grand scheme of things it is for the greater good. Title III of the ADA was crafted to deliberately foil attempts at discrimination based on physical attributes and conditions. The letter of the law reads as follows:
“Title III prohibits discrimination on the basis of disability in the activities of places of public accommodations (businesses that are generally open to the public and that fall into one of 12 categories listed in the ADA, such as restaurants, movie theaters, schools, day care facilities, recreation facilities, and doctors’ offices) and requires newly constructed or altered places of public accommodation—as well as commercial facilities (privately owned, nonresidential facilities such as factories, warehouses, or office buildings)—to comply with the ADA Standards.”
Without Title III, any business or government could potentially refuse service to individuals by extending their definition of “disability” to any characteristic. For example, without Title III, organizations could classify people with glasses or speech impediments as disabled and refuse them service. Businesses could choose not to serve elderly people, individuals with speech impediments or even those whose first language is not English. Virtually any characteristic could subjectively become criteria for a “disability” including ethnicity, hair color, gender, sexual orientation, economic class, and so on.
But, Title III of the ADA protects us all against this sort of arbitrary discrimination. Section 36.303 also defines compliance as follows:
“A public accommodation shall take those steps that may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services…”
Up until now, it’s been reasonable to expect “public accommodations” to mean brick-and-mortar entities as well as websites, but the recent court ruling in Miami absolutely confirms it.
Furthermore, the ADA was constructed to protect the rights, ways, and means of ALL. The architects of the Act included clauses to thwart opportunists from creating legal logjams in the courts or irreparably damaging businesses with unreasonable demands:
“… unless the public accommodation can demonstrate that taking those steps would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations being offered or would result in an undue burden, i.e., significant difficulty or expense.”
Invariably, Title III of the ADA protects well-intentioned businesses and entities from being unduly attacked by class action lawsuits because of a mere oversight. The application of the Act can also be quite unforgiving against entities shown to irresponsibly cut corners despite available resources. This also reinforces the idea of government entities being especially susceptible since they are expected to set examples for responsible governance.
Regardless of where an online presence rests in terms of compliance, the reality is visual impairment is significant in the United States and worldwide. According to fact sheets published by the National Federation of the Blind, nearly 10 million Americans are blind or visually impaired. Globally, those numbers approach nearly the population of the United States at approximately 285 million people. Given these numbers, making your site more accessible will inevitably serve some aspect of your community.
How to Ensure Your Provider Complies
Whether you are launching an engagement site for a temporary project, or a permanent site to solicit feedback from your community on a host of topics, be sure to check whether the solution is compliant with ADA and WCAG standards. A statement of compliance or intent is not enough. Many providers, who do little to meet the standards,
include a bland statement of intent as an accessibility statement on their sites. Here are some tips on how to tell if the solution is compliant:
- Speak to the software provider about their attitude to accessibility. If they tell you they are ‘all about engaging the majority’ and that accessibility rules get in the way of that goal, then run a mile. They might just land you in the courtroom.Ask to see copies of the software providers most recent audits. It is good practice to conduct these on a regular basis. Any audit showing a nil return should be viewed with suspicion. Accessibility is a work in progress and regular audits are critical because small changes to the software will cause issues. A pattern of a regular audit, issue identification and remediation is what you should expect to see. As with most things in life, there is almost always room to get better.
- Ask to see copies of the software providers most recent audits. It is good practice to conduct these on a regular basis. Any audit showing a nil return should be viewed with suspicion. Accessibility is a work in progress and regular audits are critical because small changes to the software will cause issues. A pattern of a regular audit, issue identification and remediation is what you should expect to see. As with most things in life, there is almost always room to get better.
- Avoid using an automated tool to scan for accessibility. All sites are likely to throw some errors and unless you are a technical expert, it is hard to tell which of these are in the bones of the site and which is because of the nature of the content added. What is more important is whether the site can be accessed and interacted with using a screen reader. If someone you know uses one of these, perhaps ask them to let you know how easy it was to read the site.
Do We Practice What We Preach?
While website accessibility in North America has been largely voluntary up until now*, it is mandated in Australia, which is where roughly 65% of Bang the Table’s client base is currently situated. It’s no small accident our online public participation, stakeholder and citizen engagement software not only meets but exceeds the compliance requirements defined by WCAG 2.0 AA standards. In fact, Bang the Table’s software, EngagementHQ, is audited on a quarterly basis and is used by Vision Australia to engage with Australia’s visually impaired community. Some of our clients exhibit a commendable commitment to accessibility. A great example of a site running Bang the Table’s software is the City of Oshawa site. To date, the site has won numerous awards from many different associations for proving how accessibility can be implemented without compromising the user experience.
- *This can be a little bit misleading since lower courts have already ruled that websites are covered by the ADA even without any connection to a physical place. Go here for more information.
- ADA Best Practices Tool Kit for State and Local
- First Public Accommodations Website Accessibility Case Goes to Trial in Florida