Stay Secure. Be Sure Your Website is ADA Compliant

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Jeremy Horelick– VP Business Development – ADA Site Compliance 

In the first quarter of 2021, the horticulture industry became the latest target of serial plaintiffs filing anti-discrimination lawsuits against the owners of websites and mobile apps. This is nothing new. Since 2017, industries such as banking and finance, travel, hospitality, food and beverage, real estate, healthcare, education, and entertainment have seen waves of similar litigation filed under Title III of the Americans with Disabilities Act (ADA), which prohibits places of public accommodation—e.g. retail stores, service centers, educational institutions—from discrimination based on ability status. Most serial filers, often known as “testers,” are blind or have low-vision, though a growing number are deaf or physically disabled.

The central charge of their claims is that improperly designed websites and apps can prevent them from working with the assistive technology that many people with disabilities use to navigate digital domains. Examples of such barriers include insufficient color-contrast between text and background, or text that cannot be properly magnified. Other claims have focused on missing captions for video, which prevents deaf or hearing-impaired users from finding and using content in a manner equal to that of people without disabilities. During the COVID-19 pandemic, with more people confined to home, and with the increased demand for online goods and services, the pace and volume of lawsuits being filed has markedly increased. The year 2020 saw roughly 3,500 claims filed in federal and state courts, with potentially tens of thousands of threats and demand letters sent.

As of this writing, over 30 companies in the horticulture space have been sued by one plaintiff, Milton Williams, who is blind and relies on screen-reading technology to access the Internet. The suits have been filed in New York by the plaintiffs’ firm Gottlieb & Associates, though the defendants named operate nationwide. The complaints seek no monetary damages, but injunctive relief by the courts, as well as attorneys’ fees. Most cases settle quickly and for relatively modest sums—typically a few thousand dollars—which makes them cost-prohibitive to fight in court. In addition to the settlement amount and legal fees, defendants also bear the cost to audit the website and bring it into ADA compliance. While no formal legal standard exists for website and app compliance, a de facto standard called the Web Content Accessibility Guidelines (WCAG), put forth by the World Wide Web Consortium (W3C) consists of technical “success criteria.” The cost of a proper audit to identify all failures on a website can run into the low-five-figures. This excludes the cost of any fixes, which should be done by a knowledgeable, experienced IT team. Given these costs, the best defense against litigation is not to receive it in the first place.

What can growers, breeders, distributors, retailers, and others in the industry do to guard against such threats? The first step is education; companies must realize that digital accessibility is here to stay and that their efforts to remain ahead of legal threats will be an ongoing one; there is no set-it-and-forget-it approach to website compliance. Second, businesses should conduct an honest assessment of their current accessibility plan to identify what they are doing well and what steps still need to be taken. At the very least, all websites should have an easy-to-find accessibility policy posted that informs visitors of their ongoing compliance efforts and lists contact information for anyone needing assistance. Third, steer clear of the many “AI-backed” products being offered online. While quick and cheap is an attractive marketing pitch, these products will not make a website or app accessible. Using an overlay or widget in conjunction with a strategy of manual auditing is fine, but software tools alone can only find about 30% of compliance failures. You must have end users, preferably those with disabilities, testing the website to ensure true usability. Otherwise, more legal claims are likely to follow.

Lastly, partner with a dedicated accessibility specialist with experience in this space. A qualified expert will do more than just scan your website. They will teach your IT and content teams how to address the root causes of inaccessibility and help you build business processes that promote inclusion and equity going forward. The right partner will also show you how digital accessibility is about far more than risk-management. Done correctly, your efforts can help drive more business through the positive PR you generate. Making your digital footprint more accessible to all visitors will expand your universe of customers, increase revenues, and burnish your brand. And these are goals that all businesses can agree on.

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