The digital realm has become an essential part of our daily lives, transforming how we work, shop, learn, and connect with others. As this digital transformation accelerates, ensuring that websites, mobile applications, and other digital tools are accessible to people with disabilities has emerged as both a civil rights imperative and a significant legal consideration. At Nisar Law Group, we guide both businesses seeking to implement compliant digital accessibility practices and individuals with disabilities encountering digital barriers.
This comprehensive guide examines how the Americans with Disabilities Act (ADA) applies to digital accessibility, what compliance entails, and how organizations can create digital environments that are accessible to all users.
Disclaimer: This article provides general information for informational purposes only and should not be considered a substitute for legal advice. It is essential to consult with an experienced employment lawyer at our law firm to discuss the specific facts of your case and understand your legal rights and options. This information does not create an attorney-client relationship.
The Legal Framework for Digital Accessibility
The Americans with Disabilities Act doesn’t explicitly mention websites, mobile applications, or other digital technologies—understandably so, given that it was enacted in 1990 before the widespread adoption of the internet. However, courts, regulatory agencies, and legal experts have increasingly interpreted the ADA to apply to digital spaces based on its underlying purpose of ensuring people with disabilities have equal access to goods, services, and information.
ADA Title III and Digital Accessibility
Title III of the ADA prohibits discrimination on the basis of disability in places of public accommodation, which traditionally referred to physical locations like restaurants, hotels, retail stores, and service establishments. The key legal question that has evolved over the past decade is whether websites and digital platforms constitute “places of public accommodation” under the ADA.
Federal courts have reached differing conclusions on this question, creating a somewhat fragmented legal landscape:
Nexus Approach: Some courts require a connection or “nexus” between a website and a physical location to consider the website covered under Title III. Under this interpretation, a retail store’s website would be covered, but a web-only business might not be.
Broad Interpretation: Other courts have adopted a more expansive view, holding that websites themselves can be places of public accommodation regardless of whether they have a connection to a physical location. This approach recognizes the central role digital services play in contemporary life.
Hybrid Approach: Some courts consider factors like whether the website offers goods or services similar to those traditionally offered at physical locations covered by the ADA.
Despite these variations, the trend in recent years has clearly moved toward broader application of the ADA to digital spaces. Department of Justice (DOJ) statements, settlement agreements, and an increasing number of court decisions reflect the view that digital accessibility falls within the ADA’s scope.
Other Relevant Laws and Regulations
Several other laws and regulations complement the ADA in governing digital accessibility:
Section 508 of the Rehabilitation Act: Requires federal agencies and organizations receiving federal funding to make their electronic and information technology accessible. While Section 508 doesn’t directly apply to private businesses, it established important technical standards that influence broader accessibility practices.
Air Carrier Access Act (ACAA): Requires airlines to make their websites accessible to people with disabilities.
21st Century Communications and Video Accessibility Act (CVAA): Requires communications services and products to be accessible to people with disabilities, with specific provisions for video programming and advanced communications services.
State Laws: Several states, including California, New York, and Massachusetts, have enacted their own digital accessibility laws that sometimes provide more specific requirements or broader coverage than federal law.
These overlapping legal frameworks create a complex compliance landscape that organizations must navigate carefully, especially those operating across multiple jurisdictions.
Understanding Digital Accessibility Barriers
To effectively address digital accessibility, it’s essential to understand the common barriers that people with different disabilities encounter in digital environments.
Visual Disabilities
People who are blind or have low vision may use screen readers—software that converts text to speech or braille output—to navigate digital content. Common barriers include:
- Images without alt text descriptions
- PDFs that aren’t properly structured for screen readers
- Forms without properly associated labels
- Color combinations with insufficient contrast
- Content that can only be understood through visual cues
- Navigation that requires precise pointer control
Hearing Disabilities
For people who are deaf or hard of hearing, audio content presents the primary challenge:
- Videos without captions or transcripts
- Audio content without text alternatives
- Lack of visual alternatives for audio signals (like error beeps)
- Media players that can’t display captions or adjust volume
- Video conferencing without captioning options
Motor Disabilities
People with limited mobility or dexterity may use assistive technologies like voice recognition software, eye-tracking devices, or alternative input devices. They may encounter:
- Interfaces requiring precise mouse movements
- Time-limited functions that require quick responses
- Small clickable areas that demand fine motor control
- Keyboard traps where focus cannot move away from an element
- Functionality that works only with a mouse and not with keyboard controls
Cognitive Disabilities
Individuals with cognitive, learning, or neurological disabilities may struggle with:
- Complex navigation systems
- Inconsistent layouts and functionality
- Distracting animations or auto-playing content
- Dense, complex text without summaries or visual aids
- Time constraints that limit processing time
- Lack of error prevention and correction options
Addressing these barriers requires a multifaceted approach that considers diverse user needs and the various assistive technologies people use to interact with digital content.
Web Content Accessibility Guidelines (WCAG)
While the ADA itself doesn’t specify technical standards for digital accessibility, the Web Content Accessibility Guidelines (WCAG) developed by the World Wide Web Consortium (W3C) have emerged as the de facto standard. Courts, the DOJ, and settlement agreements routinely reference WCAG as the benchmark for digital accessibility compliance.
WCAG Structure and Levels
WCAG is organized around four key principles, stating that digital content must be:
Perceivable: Information and user interface components must be presentable to users in ways they can perceive. This means providing text alternatives for non-text content, captions for multimedia, creating content that can be presented in different ways, and making it easier for users to see and hear content.
Operable: User interface components and navigation must be operable. This includes making all functionality available from a keyboard, giving users enough time to read and use content, not designing content in ways known to cause seizures, and providing ways to help users navigate and find content.
Understandable: Information and operation of the user interface must be understandable. This means making text readable and understandable, making content appear and operate in predictable ways, and helping users avoid and correct mistakes.
Robust: Content must be robust enough to be reliably interpreted by a wide variety of user agents, including assistive technologies. This primarily involves ensuring compatibility with current and future user tools.
Each principle contains specific guidelines, and each guideline includes testable success criteria at three levels of conformance:
Level A: The minimum level of conformance, addressing the most basic web accessibility features.
Level AA: Addresses the biggest and most common barriers for disabled users. This is the level most commonly required in legal contexts and the general target for most organizations.
Level AAA: The highest level of conformance, representing an enhanced level of accessibility that may not be achievable for all content.
WCAG Versions
WCAG has evolved over time to address emerging technologies and refined understanding of accessibility needs:
WCAG 2.0: Released in 2008, this version established the four core principles and three-level conformance model.
WCAG 2.1: Released in 2018, this update added 17 new success criteria to address mobile accessibility, low vision needs, and cognitive disabilities.
WCAG 2.2: Released in 2023, this version includes additional criteria focused on mobile devices, cognitive disabilities, and users with low vision.
Most legal standards and settlements currently reference WCAG 2.0 or 2.1 Level AA, though organizations focused on comprehensive accessibility may aim for WCAG 2.2 compliance to future-proof their digital assets.
Implementing Digital Accessibility
Creating accessible digital environments requires a systematic approach that integrates accessibility into development processes, content creation, and ongoing maintenance.
Technical Implementation
Effective technical implementation of accessibility involves attention to several key areas:
Semantic HTML: Using appropriate HTML elements that convey meaning (like headings, lists, and button elements) rather than relying solely on visual styling. This helps screen readers understand the page structure and allows users to navigate efficiently.
Alternative Text: Providing descriptive alternative text for images that conveys their purpose and content. Decorative images should have null alt attributes to be properly ignored by screen readers.
Keyboard Navigation: Ensuring all functionality can be accessed using a keyboard alone, including visible focus indicators that help keyboard users track their position on the page.
Form Accessibility: Creating properly labeled form fields with clear instructions, error messages, and validation that works with assistive technology.
Color and Contrast: Using color combinations that provide sufficient contrast for users with low vision or color blindness, and never relying on color alone to convey information.
Video and Audio: Providing synchronized captions for video content, transcripts for audio content, and audio descriptions for visual information that’s essential to understanding video content.
Dynamic Content: Ensuring that content that changes automatically (like carousels or live updates) can be paused, stopped, or hidden, and that notifications about these changes are available to screen reader users.
Responsive Design: Creating interfaces that adapt to different screen sizes and zoom levels to accommodate users who need enlarged text or use mobile devices with accessibility features.
Organizational Approach
Beyond technical implementations, building truly accessible digital environments requires organizational commitment and processes:
Accessibility Policy: Develop a clear accessibility policy that defines standards, responsibilities, and processes for ensuring digital accessibility across the organization.
Training: Provide training for developers, designers, content creators, and managers about accessibility requirements and implementation techniques relevant to their roles.
Design and Development Integration: Incorporate accessibility considerations into the earliest stages of design and development processes rather than treating it as an afterthought.
Testing Protocol: Establish regular automated and manual testing procedures that include assistive technology testing and, ideally, user testing with people who have disabilities.
Procurement Standards: For third-party tools and services, include accessibility requirements in contracts and evaluate products for accessibility before purchase.
Feedback Mechanism: Create channels for users to report accessibility issues and establish processes for addressing these reports.
Documentation: Maintain documentation of accessibility efforts, including testing results, remediation plans, and timelines, which can be valuable if legal challenges arise.
Mobile Application Accessibility
Mobile applications present unique accessibility challenges beyond those of websites:
Platform-Specific Guidelines: Both iOS and Android have their own accessibility frameworks and guidelines that developers should follow in addition to WCAG principles.
Touch Interfaces: Ensure touch targets are large enough (at least 44×44 pixels) and adequately spaced to accommodate users with motor disabilities.
Gestures: Provide alternatives to complex gestures that may be difficult for some users to perform, and avoid requiring time-based or multi-finger gestures for essential functions.
Native Components: Use the platform’s native UI components when possible, as these generally have built-in accessibility features.
Screen Reader Support: Test with VoiceOver (iOS) and TalkBack (Android) to ensure all elements are properly labeled and that the reading order makes sense.
Notifications: Ensure that alerts and notifications are accessible through multiple sensory channels (visual, auditory, and haptic feedback).
As mobile usage continues to grow, ensuring that apps are as accessible as websites has become increasingly important from both legal and usability perspectives.
Legal Risks and Compliance Strategies
The lack of explicit regulatory standards for digital accessibility under the ADA has created a challenging compliance environment where litigation has become a significant driver of accessibility adoption.
Current Litigation Landscape
Digital accessibility lawsuits have increased dramatically in recent years:
Volume Trends: Thousands of digital accessibility lawsuits are filed annually, with numbers continuing to rise year over year.
Common Targets: Retail, hospitality, financial services, and healthcare industries face the highest number of claims, though businesses of all types and sizes have been targeted.
Settlement Patterns: Most cases settle before trial, typically requiring the defendant to remediate accessibility issues, adopt WCAG standards (usually Level AA), conduct regular testing, and pay plaintiffs’ legal fees.
Serial Litigation: Some plaintiffs and law firms have filed numerous similar complaints against different businesses, creating concern about “drive-by” lawsuits that primarily seek settlements rather than substantive accessibility improvements.
Despite criticism of serial litigation tactics, these lawsuits have undeniably accelerated the adoption of accessibility standards across various industries and raised awareness of digital accessibility obligations.
Risk Mitigation Strategies
Organizations can take several approaches to reduce legal risk while improving accessibility:
Accessibility Audit: Conduct a comprehensive audit of digital properties using both automated tools and manual testing to identify existing barriers.
Prioritized Remediation: Develop a remediation plan that addresses the most critical accessibility issues first, particularly those affecting core functionality like navigation, forms, and checkout processes.
Accessibility Statement: Publish an accessibility statement that acknowledges your commitment to accessibility, outlines current compliance status, notes ongoing improvement efforts, and provides a way for users to report accessibility issues.
Alternative Access: Where immediate remediation isn’t feasible, consider providing alternative means of access, such as dedicated support lines for users who encounter barriers.
Documentation: Maintain documentation of all accessibility efforts, including audits, remediation plans with timelines, training provided, and responses to user feedback.
Third-Party Content: Address the challenges of third-party content and tools by including accessibility requirements in contracts and working with vendors to improve accessibility.
Regular Reassessment: Implement ongoing monitoring and testing to identify and address new accessibility issues as they arise, particularly when content or functionality changes.
While these strategies cannot eliminate legal risk entirely, they demonstrate good-faith efforts toward accessibility and can significantly reduce exposure to successful claims.
The Business Case for Digital Accessibility
Beyond legal compliance, digital accessibility offers several business advantages that make it a worthwhile investment:
Expanded Market Reach: Approximately 26% of adults in the United States have some type of disability. Creating accessible digital experiences allows businesses to reach this substantial market segment.
Improved User Experience for Everyone: Many accessibility features benefit all users, not just those with disabilities. For example, captions help people in noisy environments, clear navigation helps everyone find information more easily, and well-structured content improves comprehension for all readers.
Enhanced Brand Reputation: Commitment to accessibility demonstrates social responsibility and inclusion, which can strengthen brand perception among consumers increasingly concerned with ethical business practices.
Innovation Driver: Designing for accessibility often leads to creative solutions and innovations that improve products and services for all users.
SEO Benefits: Many accessibility practices, such as proper heading structure, descriptive link text, and text alternatives for images, also improve search engine optimization.
Reduced Maintenance Costs: Well-structured, accessible code is generally easier to maintain and update, potentially reducing long-term development costs.
Talent Acquisition and Retention: Accessible digital workplace tools enable companies to hire and retain talented employees with disabilities, expanding the available talent pool.
Organizations that view accessibility as a business opportunity rather than merely a compliance obligation often develop more creative, comprehensive approaches that yield benefits beyond risk reduction.
Future Directions in Digital Accessibility Law
The legal landscape for digital accessibility continues to evolve, with several developments likely to shape future requirements:
DOJ Regulations: The Department of Justice has indicated it may eventually issue specific regulations regarding website accessibility under the ADA, which would provide more clarity about compliance requirements.
Expanding Scope: Courts have increasingly applied accessibility requirements to new technologies, including mobile applications, streaming services, and virtual reality environments. This trend will likely continue as technology evolves.
International Harmonization: As more countries adopt digital accessibility laws, there may be movement toward more harmonized global standards, potentially simplifying compliance for multinational organizations.
Beyond WCAG: While WCAG remains the dominant standard, additional guidelines are emerging for specific contexts, like the User Agent Accessibility Guidelines (UAAG) for browsers and media players, and more comprehensive standards may develop.
AI and Automation: Artificial intelligence tools for accessibility testing and remediation are becoming more sophisticated, potentially making compliance easier to achieve and verify.
Organizations should monitor these developments and maintain flexibility in their accessibility strategies to adapt to changing legal and technical standards.
Conclusion: Moving Toward Digital Inclusion
Digital accessibility represents more than a legal obligation—it’s a commitment to ensuring that all individuals, regardless of ability, can participate fully in our increasingly digital society. By removing barriers to digital content and functionality, organizations not only reduce legal risk but also demonstrate their commitment to inclusion, expand their reach, and often improve the user experience for everyone.
At Nisar Law Group, we help both businesses implementing digital accessibility strategies and individuals facing digital barriers. Whether you’re developing a comprehensive accessibility plan or addressing specific compliance concerns, our experienced attorneys can provide guidance tailored to your situation.
The path to fully accessible digital environments may seem challenging, but with proper planning, ongoing attention, and commitment to inclusion, organizations can create digital spaces that truly work for everyone. In doing so, they not only meet their legal obligations but contribute to a more equitable digital landscape where all users can participate, contribute, and benefit.
