In times that have required us to adapt our services to the digital space as much as possible, it’s important your law firm website is accessible to all users.
Internet accessibility lawsuits recently exploded across the nation, filed individually and as class actions, as reported in the National Law Review here. The need for change is building attention, with the 9th annual Global Accessibility Awareness Day approaching on May 21st.
Morality and legal liability under the ADA aside, there’s also a clear business case for an accessible website. Accessible websites reach more potential clients and improve your search engine optimization — and likely client experience across the board as well. For example, 83% – 92% percent of video content is consumed without sound — closed captions help far more than those with hearing disabilities.
Complying with ADA Requirements
Beyond deeper reasons to ensure websites are accessible, solo and small law firms need to consider the ADA Title III. First, law firms are listed as places of public accommodation specified under section (F) of Title III. (And firms with 15 or more employees are also required provide reasonable accommodations for disclosed disabilities under Title I.) A second consideration is whether websites per se must comply, and generally courts are finding they are.
Although not in the context of the ADA, the US Supreme Court has said that being on a website is the same as being in that place, as pointed out by William D. Goren at a July 2019 MCLE Tech2Practice program on Making Your Website ADA Compliant (just before the 8-minute mark). Attorney Goren provides consulting, counseling, and training services involving compliance with the Americans with Disabilities Act (ADA) and the Rehabilitation Act of 1973 in Georgia — and you can find more on web accessibility here on his blog.
Although the DOJ hasn’t issued guidance for applying the ADA online, defenses to ADA liability for website inaccessibility are unlikely to succeed. Attorney Goren discussed possible defenses, indicating court trends finding against undue burden among others, including primary jurisdiction. Since then, the US Supreme Court declined to hear an appeal from the 9th Circuit, which rejected the primary jurisdiction doctrine, pointing to “meaningful access” as actionable guidance.
Making Your Website Accessible
“Meaningful access” is the standard for compliance under Title III, so what are the standards for “meaningful access”? Although there’s no judicial or legislative guidance on what meaningful access is, there is practical guidance on what you can do to provide meaningful access.
The Web Content Accessibility Guidelines (WCAG) are widely looked at as the standard. Again, not by legal authority. For each guideline, there are three levels of accessibility conformance — A, AA, and AAA, with AAA being the most rigorous and more relevant to complex technologies and apps. (Government entities are required to comply with Section 508 which reference WCAG 2.0 Level AA.) The WCAG offer 4 key principles for website accessibility, summarized further on this Quick Reference Sheet:
- Perceivable — Interface components can’t be imperceivable to all the user’s senses.
- Operable — Operating user interface components & navigation can’t require action the user can’t perform.
- Understandable — Content and operation can’t be beyond the user’s understanding.
- Robust — As technology and user agents evolve, content must remain accessible.
Some basic rules to follow the WCAG principles were provided in MCLE’s Tech2Practice Program by Gyi Tsakalakis, founder of AttorneySync just after 30-minutes into the program.
- Do not create a separate “accessible” website
- Pay attention to color contrast
- Avoid dropdown menus
- Provide alternate text for images
- Provide descriptive anchor text for hyperlinks
- Provide captions on audio and video
Parts of a website important for accessibility and a basic accessibility checklist are included in A Beginner’s Guide to ADA Website Accessibility Compliance from Search Engine Journal.
It’s also key to include an Accessibility Statement on your website. Accessibility statements communicate what steps you’ve taken, what additional steps you might be planning, and invite feedback. Accessibility statements let users know what to expect, and communicate that you care.
Website coding and architecture can create barriers to meaningful access even with the key actions above covered. While most web development platforms, including WordPress, offer themes and guidance that help with ADA compliance, modifications and plug-ins can create barriers — for example, Flash content is often problematic. The cleaner the web design, the easier it is to make accessible.
Accessibility advocates discourage the use of overlay tools like UserWay, AccessiBe, and others. Find more about the open letter published in May 2021 here.
You need to test your website, overlay tool or not, to know how it works for an impaired user. WebAIM offers the WAVE Web Accessibility Evaluation Tool — you can test your website’s accessibility, receive a report with errors and alerts, and then plan improvements from there.
Website accessibility requires planning as an ongoing part of website design. To really honor the ADA, avoid web accessibility quick-fix overlays, as Attorney Lainey Feingold points out here. More comprehensive (and of course more expensive) solutions offer services for manual remediation of all coding and ongoing maintenance — but that’s unlikely to be a practical solution for solo and small law practices both due to cost and need. Focusing on simplicity in web design makes both website accessibility and general maintenance easier. MCLE’s Tech2Practice Program outlined 8 questions to cover if you work with a web developer:
- Do you evaluate accessibility for screen readers and voice dictation?
- Do you have screen reader and voice dictation technology users beta test website?
- When do you consider a website “meaningful accessible” to users with disabilities?
- Have you tested prior websites and do you have samples for to review?
- Do you have a sample Accessibility Statement?
- Do you use overlays for accessibility or is accessibility coded into site and its architecture?
- Is regular accessibility testing part of ongoing maintenance work?
- Certify work will comply with the WCAG?
Finally, still, certification of compliance doesn’t necessarily provide “meaningful access”. Attorney Goren pointed out in the MCLE Tech2Practice Program that complying with the ADA is a non-delegable duty; so regardless of whether the certifier is also liable, you’re liable. Focus on improving rather than compliance.
Web accessibility takes time and attention, which can feel scarce for solo and small firm practitioners. Lawyers in Massachusetts feeling overwhelmed by your responsibilities as both lawyer and law firm manager can schedule a Free & Confidential consultation with one of our practice advisors to help identify what processes to work on improving first. Start scheduling here.
Related:
ADA & Website Accessibility (MCLE Recorded Webcast available Oct 20, 2021)
Is Your Law Firms Website Accessible? (Law Technology Today, June 2016)
Five Things Every Lawyer Needs to Know About Digital Accessibility (Law Technology Today, June 2018)
A Short Overview of Internet Accessibility Litigation (Mass LOMAP Webinar, 2020)
Digital Spaces as Places of Public Accommodation (ABA Law Practice Today, 2021)
