Case closed: Web accessibility is now your problem…

The Web Accessibility dam has burst, and your company could get caught in a surging flood of lawsuits, if you don’t act immediately.

As part of your job managing a business’ e-commerce or website, you might know that new regulations on website compliance, under the Americans with Disabilities Act, will come into force in a few months. But did you also know that courts are already imposing hefty fines on websites that don’t comply? And, what’s worse, that they’re also broadening the applicability of the act to include nearly every type of business website? How will your employer fare if you don’t guarantee that its website complies with ADA rules?

If recent events are any indication, fare well, it won’t.

Courts have wasted no time in sanctioning businesses with websites that don’t comply with the ADA, even though the new rules have not yet come into force. They’ve started by strictly applying existing guidelines — many of which are about to get far more demanding — though these guidelines are likely already not being followed by a majority of businesses. That is, judges have not been lenient.

Instead, the courts have been zealous in implementing the ADA, likely because it is a civil rights matter, and no one wants to err on the side of permissiveness when vulnerable people’s rights are at stake.

Nor should you. Based on the requirement that businesses provide to disabled people “‘full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation,” including their online presence, lawsuits have forced companies such as Winn Dixie, Colorado Bag’n Baggage and Target to dish out hundreds of thousands or millions of dollars to plaintiffs. Why? Because they inadvertently or negligently failed to make their websites fully accessible to visually impaired customers – when a smart, very affordable and timely fix could have easily prevented their losses and, in fact, put them in good standing.

And accessibility goes well beyond ensuring readability, as was the central matter in many of these cases. Accessibility it’s not something that can be implemented via quick patches and guesswork. In fact, it is not at all self-evident what compliance actually means. The requirements are often vague and opaque, making them hard to abide by (unless you are equipped with a one-stop solution). Beyond ensuring that your text is readable, is it sufficiently understandable? Do your web pages operate in predictable ways? Might your videos and animations cause seizures? Is it sufficiently easy to separate foreground from background in your images and ads? And if you do adapt your content, piecemeal, are you ensuring that your site is easily updated to allow for new accessibility technology?

Do you know what that means you need to do, to avoid legal sanctions? We didn’t think so.

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That’s because courts in South Florida, Western Pennsylvania, California and New York City have taken the lead in interpreting the ADA as more and more onerous for businesses that fail to comply. And, what’s critical to understand is, their harsh decisions – and the punitive fines that they levied — will serve as the precedents for all new cases brought by disabled plaintiffs or their representatives after the new rules are implemented. Indeed, litigators familiar with the ADA have said that they see these verdicts and settlements as a sign that companies will be on the defensive, and those who do not comply will be facing harsh penalties. As attorney Minh Vu recently told Bloomberg News, “To the extent that businesses are considering whether to settle or litigate these cases, this decision [to fine Winn Dixie a harsh penalty for non-compliance] makes the possibility of an adverse verdict much more real.”

And rest assured that there is no sign that the trend to litigation is abating. On the contrary, when the new rules come into force in January 2018, it is almost a certainty that a tidal wave of new litigation (targeting the websites of ever-new business types) will hit the e-commerce world. That’s because on top of the new rules, the courts have broadened the applicability of the ADA to potentially cover any website. The judge in the Winn Dixie case ruled that, though not a government agency, the business’ site qualified as a “place of public accommodation” under the ADA because it was integrated with Winn Dixie’s stores. Is your e-commerce site “integrated” with your physical store? Does it operate as one? Could that be a requirement?

As Make-Sense CEO David Adi asks, “Why take a risk? Judges are making this law applicable to an ever-broader set of businesses. And the fines keep growing.” His suggestion: “Instead of spending masses of money on lawyers and fines, there are very affordable and complete solutions that can easily be made to work with all types of existing technology out there.” These solutions, David said, ensure compliance not only now, but for years to come.” One such solution, Make-Sense A-ToGo product, even learns what disables users prefer as it makes existing websites accessible to them.

Whatever your business may be and however complicated or simple the technology underlying its website, the ADA rules on website compliance are no longer a distant threat. Thanks to the courts, they are an actual urgency for all of us. But it’s not too late to affordably avoid problems and painful fines. And just imagine how clever you’ll look as your company weathers the storm and grows its consumer base while its competitors get caught in it.