We’ve recently noticed a growing concern from lawyers that their law firm could be subject to Americans with Disabilities Act (ADA) enforcement or lawsuits because of their website.
This blog post is meant to help attorneys understand how to make their websites accessible to people with disabilities and prepare their websites for potential ADA scrutiny without wasting money, and without hobbling their marketing chasing the illusion of “ADA compliance.” This post is not intended to be legal advice, and should not be relied on as such.
At LawLytics, we believe that all law firm websites should provide the easiest and best experience to all website visitors. Your potential clients should be able to interact successfully with your website regardless of which device or browser they are using, and regardless of whether they have limitations or disabilities.
A Brief History of the ADA as Applied to Websites
As of January 2019, the ADA provides no rules for website compliance. There is currently no proposed rulemaking.
How did we get here?
The ADA, 42 U.S.C. § 12101, originally became effective on July 26, 1990, predating the mainstream commercial use of the internet. Since then, reforms have failed to evolve with the pace of advancing internet technology.
On July 26, 2010, the Obama Department of Justice issued an Advanced Notice of Proposed Rulemaking called “Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of State and Local Government Entities and Public Accommodations” (75 FR 43460). It proposed the question of which standards the DOJ should use for websites.
In March of 2014, despite the lack of any final rules in place, H&R Block entered into a consent decree with the DOJ (Civil Action NO. 1:13-cv-10799-GAO) regarding the accessibility of its website. The complaint, originally brought by the National Federation of the Blind on behalf of itself and one of its members, and two private plaintiffs, alleged that individuals with disabilities couldn’t access or effectively use services and benefits offered through www.hrblock.com. Specifically, the complaint alleged that people with disabilities were prevented from independently preparing and filing their taxes online, downloading tax prep software, and accessing a range of other services H&R Block offered the public through its website.
The consent decree spelled out how H&R Block would comply with Title III of the ADA in phases, and cited the Web Content Accessibility Guidelines 2.0, or WCAG (see below). Interestingly, the decree specifically mentioned third-party plugin and content, and carved out a three-year exception from the effective date for a map plugin used to display map locations of physical offices, presumably acknowledging the current lack of available technology to make such content available to people with disabilities.
On December 26, 2017, the Trump DOJ announced the withdrawal of the Obama-era Advance Notice of Proposed Rulemaking intended to require ADA website compliance (82 FR 60932). As of early 2019, there are no rules about ADA website compliance, and no rules on the horizon.
So, at least for the next couple of years, there are likely to be no regulations about required accommodations for websites. Therefore, the courts have been forced to fill the void, resulting in a widely varying collage of often conflicting decisions in response to lawsuits filed, and demand letters sent, on behalf of people with disabilities alleging that websites are not accessible.
Some courts have required companies to bring their websites into compliance with WCAG 2.0 standards. In other cases, courts have allowed the company to show that modifications would fundamentally alter the nature of the services provided, or result in an undue burden to the business. Many of the cases have declared that websites are unreasonably limiting access despite the fact that the technology to expand access is affordable and readily available, and that the company had no plans or exerted no effort towards making its website accessible.
In short, a website company that purports to sell you “ADA compliant” law firm websites (or services that will ensure compliance) is selling something that is impossible to deliver with any level of legal certainty. While it may give lawyers some comfort to hear from their website provider or consultant that their website is “ADA compliant,” such assurances are unlikely to provide solace or shield should somebody file suit against the law firm. Based on the state of the law and enforcement, the most anybody can achieve is a good-faith effort to make their law firm’s website accessible.
Why Attorneys Should Want to Make Their Websites Accessible to Persons With Disabilities
Despite the fact that there is currently no legal definition of an ADA-compliant law firm website, attorneys should still want to voluntarily accommodate people with disabilities on their website because it’s good for business and it’s the right thing to do.
Fortunately, making your law firm website accessible to people with a variety of disabilities is relatively easy. At LawLytics, we have always approached website design and functionality from the standpoint of the end-user — your law firm’s potential clients. That is why we have always recommended against using excessive animation and gratuitous visual bells and whistles on law firm websites. It is also why attorneys who have previously spent thousands of dollars on custom website design work elsewhere routinely experience better engagement from viable potential clients — and better marketing ROI — when they switch their website to LawLytics.
So, despite the fact that there is currently no such thing as an ADA-compliant law firm website, there are cost-effective actions you can take as a LawLytics member to make your website accessible and compelling to a wide range of people including people with disabilities, including:
- People with low vision and blindness
- Hearing loss and deafness
- Learning disabilities
- Cognitive limitations
- Limitations to movement
- Speech disabilities
…and any combination of these.
Making Law Firm Websites Accessible is Relatively Easy
Unlike H&R Block and many of the credit unions that have been sued for failing to provide access to services online, most law firm websites have a much simpler job.
Since the purpose of virtually all attorney websites (including all LawLytics-powered websites) is to market to, educate, and inform the public, and provide methods for potential clients and existing clients to contact the law firm, it’s straightforward and relatively easy to provide everybody access.
The bottom line is that the content on your website should be accessible and consumable by people with the challenges listed above.
The WCAG Provides Attorneys Some Guidance About Website Accessibility Where the ADA is Silent, but is NOT Dispositive
The standards for website accessibility are still evolving.
While there is no official ADA position on website accessibility requirements, the World Wide Web Consortium (W3C) — an international community working to develop web standards — does provide suggestions in the form of Web Content Accessibility Guidelines, or WCAG for short.
In a letter [read in full at the end of this post] to US Representative Ted Budd (sent in response to a letter sent by Rep. Budd and many other members of Congress in October 2017 [read it in full a the end of this post] asking the DOJ to restart the process of issuing guidance about the Internet under Title III of the ADA), the DOJ affirmed that while its position remains that websites are places of public accommodation and therefore subject to the ADA’s requirements, in the current absence of specific technical regulations businesses “have flexibility in how to comply with the ADA’s general requirements of nondiscrimination and effective communication. Accordingly, noncompliance with a voluntary technical standard for website accessibility does not necessarily indicate noncompliance with the ADA.” (Emphasis added.)
In other words, the DOJ does not view non-compliance with the WCAG as per se violative of the ADA.
The DOJ has repeatedly stated that the WCAG is not law, but rather voluntary standards providing good benchmarks for measuring website accessibility. Furthermore, complying with WCAG doesn’t mean that your website is legally compliant with the ADA or any other law or regulation.
In January 2019, the Ninth Circuit, in the case of Guillermo Robles v. Domino’s Pizza, expressed hesitation to require businesses to preemptively conform to WCAG 2.0 or any other third-party standards in the absence of clear regulatory guidance, but that the court “can order compliance with WCAG 2.0 as an equitable remedy if, after discovery, the website and app fail to satisfy the ADA.”
The WCAG is the closest and most robust framework for thinking about how to provide accessibility on law firm websites. It provides a lot of great guidance for attorneys (and other businesses) that are looking to make their websites effective for potential and existing clients who span the range of content consumption abilities and preferences.
Fortunately, LawLytics has always strived to make each of our members’ law firm websites accessible and compelling rather than fancy or dazzling because educating and converting a law firm’s potential clients into actual clients is one of the primary missions of a law firm’s website.
WCAG Guidance for Law Firms
The WCAG provides the following four principles for website accessibility, with each principle containing specific guidelines. The principles are:
WCAG Principle 1: Perceivable: The information and user interface components must be presentable to users in ways that they can perceive. This means that visitors to your website should be able to easily see or hear your content, and that it is consumable in different assistive devices without losing meaning.
WCAG Principle 2: Operable: The user interface components and navigation must be operable. This means that all of the content should be accessible using a keyboard, that all users should have sufficient time to read or otherwise use the content, and that the content is easy to navigate and find.
WCAG Principle 3: Understandable: The information and operation of the website’s user interface must be understandable. This means that the content on your site should appear in a predictable and standard way that is intuitive for readers, and readable and understandable for assistive devices.
WCAG Principle 4: Robust: Content must be robust enough that it can be interpreted reliably by a wide variety of user-agents, including assistive technologies. This means that the presentation of your law firm’s website should adapt to be compatible with new devices, browsers and assistive devices.
You can explore the WCAG principles and guidelines to get a sense of their full scope. The WCAG goes quite deep in explaining all of the things that a website could do to provide the ultimate in accessibility. Doing all of these things perfectly is beyond the reach of most medium-to-large businesses, and would likely be prohibitively expensive and burdensome to small businesses, including law firms.
Furthermore, it’s not necessary.
For example, it’s likely unnecessary and overburdensome to add sign language interpretation to pre-recorded videos.
So what can attorneys do to provide accessibility without compromising the general effectiveness of their websites, and while keeping the costs of building and maintaining their websites affordable?
In general, your law firm’s website should be:
- Readable by screen readers that assist the visually impaired.
- Navigable in multiple ways, including using a keyboard without a mouse.
- Free of flashing colors, rapidly moving images or animations, and automatically playing video or audio content that cannot be stopped.
- Using the latest markup standards.
As a practice matter, LawLytics has always strived to abide by all four WCAG principles, as well as the above four points. These are sound web practices. We’ve long advocated that attorneys avoid gratuitous animations. Our main reason for doing this has always been the fact that purposeless design complexity reduces the conversion rates for potential clients. But it happens to be consistent with the WCAG, and makes compliance easier.
22 Things Every Lawyer Should Know About Website Accessibility
Here are the top 22 things that all lawyers should consider to ensure that their law firm’s website is accessible:
- Identify the language on each page in the code of the website. This happens automatically for all English-language LawLytics websites.
- The text on the page can be resized to 200% without losing the ability to consume the content and function in an organized form. This happens automatically for the content on all LawLytics websites.
- The site can be navigated using a keyboard. This happens automatically for all LawLytics websites.
- Menus are presented consistently. This happens automatically for all LawLytics websites.
- Correct and modern markup is used. HTML, the computer language that makes websites appear in web browsers, is ever-evolving. Over the years, new syntax has been invented, while disfavored legacy syntax has been preserved so that older pages will continue to work. The differences can be subtle, but it makes a difference in certain devices. For example, text can generally be bolded using a “<b>” attribute or a “<strong>” attribute, but “<strong>” is better for accessibility, and “<i>” or “<em>” can be used for italics, but “<em>” is better for accessibility. LawLytics uses the more modern and accessible version of all markup.
- No flashing or strobe effects are used on the website. This happens automatically for all LawLytics websites, and we strongly discourage our members from adding such effects.
- No unnecessary motion graphics or animations are used on the website. This happens automatically for all LawLytics websites, and we strongly discourage our members from adding motion graphics or animations.
- No Flash. Some older law firm websites still use Flash, which is an old and deprecated software platform. No competent law firm website company or designer is currently creating sites using Flash, but if your law firm’s site is old and is built with Flash, or relies on Flash elements, you should upgrade to a more modern and readable website structure because it will be inaccessible to a large number of your potential clients, including ones without any vision or hearing limitations.
- Redundant links on the same page are minimized. This happens automatically with the menus on all LawLytics websites. The LawLytics system allows the inclusion of each link only once in the main navigation. It automatically displays sub-links in the sidebar, and top level main navigation links in the footer.
- Images have alt-text that is readable by screen readers. Alternative (alt) text is simply a text description of an image. With LawLytics, it’s very easy to add alt text in the LawLytics media library. We recommend that you add descriptions to any image that conveys useful information to your clients and potential clients. It is open to debate whether purely decorative images need alt text. For example, a picture of you receiving an award should definitely be described, while a picture of a sunset on a page that is purely decorative may not need alt text. If you want to err on the side of caution, simply describe all of your images. So in the case of the decorative sunset picture, you might add the alt text “This is a sunset.”
- Headings are presented in the correct ascending order. With LawLytics, the title of the page automatically becomes the top-level heading, or H1. The system allows attorneys to add subheadings as they choose. We recommend nesting H2 headings under the H1, H3 headings under the H2 or H2s, and so forth. Doing so ensures that headings are presented in the correct order.
- Video content is captioned. If you are using video on your website, you can make the video accessible by adding captions to the video. If you’re producing your own videos, there is software that can help you do this, although it can be time-consuming. If you have a professional video company producing videos for you, they should be able to add captions.
- Page titles clearly and sufficiently describe the content on the page. This is a good practice for all users, and also for the search engines. With LawLytics, it’s easy to create robust and effective page titles.
- The contrast ratio between text and backgrounds is sufficient. The WCAG recommends a minimum contrast ratio of 4.5:1 for normal text, 3:1 for large text (defined as 14 point or aprox 18.66px and bold or larger, or 18 point or 24px or larger) and 3:1 for graphics and user interface components. Whether all of the text on your site fits within these parameters depends on which colors are used, and the size of your fonts. All of the content created in LawLytics falls within these ratios by default. And, if any text on your LawLytics website falls outside of the recommended contrast ratios, we can adjust it for you upon request and give you guidance to make sure that future content stays within the prescribed ranges.
- Forms can be read by screen reader software. All form fields should be properly labeled so that screen readers can discern what is being asked for. This happens automatically with LawLytics forms.
- If used, CAPTCHA provide alternatives. CAPTCHA are the puzzles that people must solve before submitting some forms. The purpose is to verify that the person is human. Many CAPTCHAs are difficult and frustrating for people with perfect vision, and without providing an alternative, may render a form unusable for people with disabilities. LawLytics sites use advanced and adaptable spam detection and mitigation methods so that no CAPTCHA is necessary. This not only eliminates the need to provide alternatives for people with disabilities, it is also a good practice because there’s nothing to slow down or thwart potential clients who want to fill out a contact or intake form on your law firm’s website.
- Links should be clearly and descriptively labeled. Screen readers pause when they get to each link, identify it as a link, and read the link’s text. In order for visually impaired people to be able to understand and navigate your website, it is important to make sure the links are clearly labeled. This is easy to do with LawLytics. It not only benefits your vision impaired visitors, but it’s also good for search engine optimization.
- Auto-playing audio or video should be easy to stop. The recommendation is that videos and audio content that plays automatically should be easy to stop. We go one step further and recommend that attorneys avoid ALL auto-playing audio and video because it’s distracting. It also causes many visitors to instantly exit law firm websites when they are searching for private or sensitive information or advice.
- No text is underlined that does not provide a link. With LawLytics, like in any web publishing system, you have the ability to add decorations to the text on your pages. However, we strongly recommend that you never use the underline function. This is because the most common way to indicate a link is also by underlining. When you add a link to your content in LawLytics, the system automatically marks and decorates it as a link. If you want to underline something that is not a link, we recommend that you use bold and/or italics for emphasis instead.
- There should be no empty links. LawLytics automatically prevents empty links in the header, footer, and sidebar navigation our law firm websites. As long as you don’t add empty links to your content, this is not something that you need to worry about.
- There are no empty headings tags. LawLytics does not add any empty headings tags. As long as you don’t add them to your content, you’re safe.
- A word about “validation errors.” Using standards-compliant HTML increases the likelihood that all web browsers and assistive programs and technologies will correctly handle the content on the website. There should be no major validation errors. But having no errors is not usually possible, and it’s not necessary. Every website (except blank pages) will have numerous “validation” errors and warnings when run through virtually any online checker. If you want to see what I’m talking about, run Yahoo.com, Google.com, Bing.com or any other successful website through this validator or this validator. You’ll see that each site has numerous “errors” (yes, even Google, despite the relative simplicity of Google’s homepage). If you’re striving for a perfect markup validation grade for your law firm’s website, or if you’re selecting a website provider that emphasizes it in their sales pitch or marketing materials, you’re going to waste a lot of time and/or money pursuing something that will never result in a return on investment.
To sum up, while having an “ADA compliant” law firm website is not possible because the standards of what it means to be ADA compliant are not defined, attorneys can and should provide an accessible and meaningful experience to people with disabilities. Doing this is easy with LawLytics.
If you would like to learn more about accessibility and giving all of your potential clients and clients the best possible experience when they visit your law firm’s website, contact us today.
Letter to DOJ