When we talk about digital accessibility, we use the guidance provided by the World Wide Web Consortium (W3C) that says accessibility is “essential for developers and organizations that want to create high quality websites and web tools, and not exclude people from using their products and services.” This applies across the entirety of the web, from informational sites to large e-commerce platforms. As companies on the web, we should be building sites that are as inclusive as possible from design all the way through development. This has become especially important because the digital accessibility landscape is quickly changing.

Courts are now ruling that, even without broader legislation, company websites can be measured against WCAG 2.0 AA standards. On top of that, WCAG 2.1 is set to add at least 10 more criteria to the guidelines set forth in 2.0 (official recommendation was created in June 2018). In fact, there’s already been a case that held the defendant to WCAG 2.1 standards (National Federation of the Blind, et al. & The County of Alameda). In 2018, the number of ADA Title III lawsuits filed were up 34% over 2017 and have tripled since 2013 (see Figure 1).

Even without the court rulings imposing accessibility, if you’re looking to reach the broadest audience possible, your sites must be accessible. The W3C notes that there are “over 1 billion people [with disabilities] with a spending power of more than $6 trillion.” The U.S. Census Bureau says that 1 in 5 people in the U.S. have a disability. That’s a pretty large market to be missing out on. If last month’s ruling in Robles v. Domino’s was any indication, it’s more important than ever to remediate or rebuild to make sure your sites are accessible.

Why do these lawsuits happen? From the full court document in Guillermo Robles v. Domino’s, the main driver for Robles to submit the lawsuit was after “at least two occasions, Robles unsuccessfully attempted to order online a customized pizza from a nearby Domino’s.” It stems largely from frustration and an inability to perform basic tasks that users without disabilities don’t consider.

The biggest part of the case is in the opinion of the Appeals Court Judge’s statement, which said, “Robles merely argues—and we agree—that the district court can order compliance with WCAG 2.0 as an equitable remedy if, after discovery, the website and app fail to satisfy the ADA.” This ruling is the first major example of an initial ruling on digital accessibility being overturned in an appeals court. The case now sits back in district court to be tried again.

While there was no monetary discussion in the case of Domino’s, past case settlements with companies like Target and H&R Block reached up to $10 million. It’s not about the money, but it adds extra weight to an already powerful case for accessibility. In the past, specifically, when the National Federation of the Blind is involved, there are letters and emails exchanged asking for remediation. When those requests are ignored, companies like Target find themselves with legal demands for remediation that can have costly consequences.

Image Credit: Seyfarth and Shaw accessed via: https://www.adatitleiii.com/2019/01/number-of-ada-title-iii-lawsuits-filed-in-2018-tops-10000/

Figure 1: Seyfarth and Shaw

We’ve seen similar cases like Winn-Dixie where the plaintiff “could not access the store locator function or purchase a gift card online using his screen reader software.” The court deemed this a violation of access to public goods and services, making it fair game for any court to make a similar ruling.  

When faced with the knowledge that your site is inaccessible, there are a few courses of action. First, you could tackle the remediation, which means keep the current site, make the necessary edits while keeping the same look and feel, but making it fully accessible. Second, you could rebuild your entire site. A new codebase, starting from the ground up to ensure that the site is both designed and developed in an accessible fashion. The third — and this has happened in a few legal cases — you can completely remove your site from the Internet. While the third option is the fastest, it’s unlikely to be the best outcome.

We’ll take a look at the first two options. Step one is to define the gap between where you are now and where you need to be to reach accessibility.

Accessibility Audits

In many cases, remediation starts with an audit or someone making you aware of your WCAG failures. We recommend using an external vendor to get an audit performed. An audit will give you a great idea of how many success criteria of WCAG you are failing. If you’re working with a digital partner like Dynamit, we offer an audit that lists issues by severity, impact, and level of effort to fix. We also lay out a roadmap for how to make your site fully accessible.

Before we get into whether it’s better to rebuild or remediate, it’s important to understand that no two audits are the same because no two accessibility testers are the same. The main thing to keep in mind is that an audit does not stop at an automated test. With an automated audit, you can determine a percentage of your errors (including some issues with design), but you still need keyboard testing, screen reader testing, and an additional design audit. The last three are done manually and give good insight into how someone with a disability may be interacting with your site and what frustrations they run into.

Remediation

Remediation is making iterative changes to bring your site into compliance. It’s helpful from a time standpoint because it can be spread out to meet the availability of your developers, and is generally faster than a full rebuild. This is not to say that you should not feel some immediacy, especially if you have pending litigation, but time is flexible. For remediation, you most likely will not have design changes to make, so it boils down to your development team, their availability, and their familiarity with the codebase. If the codebase is fragile and your developers are not comfortable making large changes (for things like focus management or navigation issues), remediation may not be in your best interest. If the codebase is over five years old it may be worth considering a rebuild.

We found that in many cases, having accessibility be a focus from the beginning of development really only adds 10-20% more development and QA time than in years past where accessibility may have been an afterthought. That’s in comparison with 40-100% extra time depending on the length of the WCAG remediation list. Remediation for legacy (3-5+ years old) single page apps is where we’ve run into the most likely candidates for rebuilds.

In the case of Winn-Dixie, they spent roughly $2 million on a total redesign and development, then implemented an additional system that set them back roughly $7 million. All the while they made no consideration for whether the site was accessible or not. In court, the Winn-Dixie expert claimed it would take at least  $250,000 to make the site accessible, while the plaintiff’s expert claimed it would set Winn-Dixie back $37,000. The judge ruled that it didn’t matter how much it cost, Winn-Dixie needed to correct the situation.

Rebuild

A rebuild, while more expensive and more time-intensive in many cases, gives you a chance to start over with accessibility as a focal point. UX/UI decisions can be made to wash away previous WCAG failures and developers build the site knowing that each decision and interface should benefit accessibility.

Fresh starts are nice, but they’re not always the best, especially when time is of the essence. Rebuilds should not be rushed, and if you’re under the gun, you may make decisions that are a detriment to both accessibility and your business. A rebuild may also not be a good choice if your developers do not have the necessary training and don't know how to implement an accessible site. When accessibility is integrated throughout development, the end result is more cohesive and tends to be a better experience for users of all abilities.

Overall, there is no one size fits all answer to the question of accessibility. You must take into account your business goals, your purpose for making your site accessible, and how much time/cost you are able to tolerate. Whatever decision you make, keep in mind that it is for the betterment of the web and will create a broader reach for your brand.

We're Here to Help

Don't wait until a lawsuit happens and alienate customers in the meantime. We will guide you through an audit and architect a plan that helps you be the hero for ALL of your users. Contact Billy Fischer here and he'll show you what's included in an audit, examples of accessible websites we've built together with our clients, and how one-two weeks and $10,000 will get you an audit of your own so you can get closer to having an accessible website that allows your customers to expect more from your brand.

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Brent Harmanis
Brent Harmanis