released April 13, 2021
(recorded April 11, 2021) - 1 hours, 27 minutes
April 7, 2021 Ruling by the 11th Circuit Appeals Court
The two-judge majority placed a lot of weight on the fact that the ADA only applies to physical spaces. In their view, a website is not a public accommodation as the ADA defines the concept.
The plaintiff, Gil, a bling man who patronized Winn-Dixie grocery store and pharmacy for 15 years, testified that ordering in person as a blind man made him "uncomfortable because he did not know who else was nearby listening" as he told the pharmacist his order.
Unfortunately, the Winn-Dixie website was incompatible with the screen-reading software Gil used to surf the web, rendering it effectively useless to him. In his lawsuit, Gil also said he couldn't access two other features of the Winn-Dixie website: a store locator function and the ability to clip digital coupons and automatically apply them at the register with his loyalty card.
In 2017, a trial court ruled in Gil's favor, finding that Winn-Dixie's website discriminated against blind users. Specifically, Title III of the ADA
requires that a "public accommodation" such as a grocery store must provide disabled customers such as Gil equal access to its "goods, services, facilities, privileges, advantages, or accommodations."
The presiding judge of the 2017 ruling, Judge Robert Scola, said "Where a website is heavily integrated with physical store locations and
operates as a gateway to the physical store locations, courts have found that the website is a service of a public accommodation and is covered by the ADA."
A website might not be a physical location, Scola reasoned, but a customer who can't use the website doesn't have full access to the store's services, privileges, and advantages—such as the service of ordering a prescription ahead of time for quick and discreet pickup.
The case was bumped up to the 11th Circuit Appeals Court where they, by a 2-1 ruling, placed a lot of weight on the fact that the ADA only applies to physical spaces. In their view, a website is not a public accommodation as the ADA defines the concept. The 11th Circuit Court covers Florida, Georgia, and Alabama.
This ruling by the 11th Circuit Appeals Court is contrary to the 2019, 9th Circuit Appeals Court, which covers the West Coast. The 9th Circuit Court interpreted ADA to include both websites and mobile apps for compliance. This means we now have a circuit split, which is one of the reasons that the Supreme Court will accept a case from the lower courts. States not covered by the 9th or 11th courts are all in play with what could happen with ADA compliance and their websites.
As a business of any size, it's better to make your website compliant just to be on the safe side, rather than to face a potential court case. Besides, it's not just following ADA compliance because of the rules, the simple fact is that everything that makes your website ADA compliance is also part of the general SEO recommendations from Google, Bing, all the SEO news outlets, and they are all recommendations we've been making for more than 10 years. This is simply good business.
Within the ADA compliance we have two separate titles. Title II applies to all "public entities," which we can simply refer to as any government organizations or ay service run by any level of government. The rules for website compliance for Title II are very well outlined.
Title III covers businesses, with a focus on any business that provides "public accommodations." In simplistic terms we can say that any business that has customers walking into it is considered to provide public accommodations. The exact list of what ADA considers a "Public Accommodation" is found here.
As explained by Search Engine Journal,
Every country, state, and province has their own guidance and regulations.
Accessibility overlays and widget plugins do not prevent ADA lawsuits.
In fact, Search Engine Journal says that when you do use an overlay or a widget plugin, you will actually attract a lawsuit because you are advertising that your website is not accessible without the widget, and if the user wants it to work they must use the overlay to make the adjustments they need.
The details of the number of lawsuits using widgets can be found in Midyear ADA Website and APP Accessibility Lawsuit Report
Critical part of a website that need to be accessible include:
• Navigation, links, focus state.
• Forms, digitally signed forms.
• Images, galleries, sliders.
• Video, podcasts, audio.
• Tables and iframes.
• Maps, infographics, illustrative graphs.
• Text layout, fonts, distractions, color contrasts.
• Page structure and organization.
• PDFs, Docs, PowerPoint.
One of the problems leading to accessibility issues is how the website are made. As explained by Search Engine Journal back in 2019 on this page,/ low cost, pre-fab, template-driven websites are less likely to be accessible and their owners not educated on what they need to know. WordPress core prides itself on meeting WCAG standards, but once you throw a theme and plugins into it, all bets are off.
Your website is not compliant. There are three popular "accessibility apps" in the Shopify marketplace that offer quick fix solutions for your Shopify site:
• Accessibility Toolkit
• Accessibility Enabler
• Accessibility Assistant
These widgets cost between $12 - $360 per month depending on the number of page views you have to your website. Remember that the more products you have on your site, the more page views you will have.
As explained by Search Engine Journal, these are widgets that pretend accessibility rather than addressing the underlying code of the website. To truly make your website accessible, you need one or more experts putting in manual effort to evaluate and remediate your website.
Common problems with Shopify websites include:
• Missing skip navigation links
• Non-navigable submenus
• No focus indicator
• Missing language
• Insufficient color contrast
• Inaccurate or missing labels
• Insufficient and/or repetitive alt text
• Text bedded within images
• Missing or improper headings
• Keyboard traps
• Sliders or carousels (even if you make sliders accessible per WCAG, they’re still problematic for accessibility, the best practice is to avoid them)
Wix has put together a checklist of how to make your website compliant. It starts with choosing one of their 42 compliant templates then following the rest of their directions.
Squarespace has the tools built in to make your site compliant, but you have to do it.
Their support documentation on the topics is here.
The pandemic made a lot of jewelers realize that their website was not functioning well enough for the rapid change in customer needs. Old product catalogs needed to be reevaluated, ecommerce added, evergreen information was rewritten, and more explicate explanations of services needed to be written out. Many jewelers were viewing their website from a different point of view for the first time.
As we've explained, you should not rely on any widget or overlay that will magickly make your website compliant because that doesn't fix the underlying issues. There are a few web design companies out there that will claim that all the websites they make are ADA compliance, and they even go so far as to slap a tiny message on the bottom of all the pages that says a site is ADA compliant. Yet these sites don't pass a simple ADA compliance test.
We use the WAVE website to evaluate the websites we work on. That tool is found here
This is what we use when working on SEO for a client, and when setting up the initial design of a website. We like this tool because we can use it as we are building pages, especially ecommerce pages and form pages. It tells us, right away, when we miss something. The tool itself is kept up to date with changes in the compliance regulations regarding websites, so we know right away if we've missed something.
You should test your own website with this WAVE tool to see if it passes current compliance. If it doesn't, then you should put this on your to-do list for website updates.
The 11th Circuit Appeals Court has a ruling about ADA compliance for business websites that completely contradicts a similar ruling by the 9th Circuit. In this episode of the ReThinkYour.com Podcast we’re diving into this hot bed of potential issues for retail jewelers known as ADA website compliance. Up ahead you’ll hear about the ruling, the impact to you, and action steps to test and improve your website.
Don't ONLY rely on the WAVE tool. You should also test your website using different accessibility plugins for web browsers. Test out how your website works on your smartphone with the accessibility features turned on.
Jewelers who have already been in the news because of ADA compliance lawsuits:
• Web Accessibility Lawsuits in 2018
• TENZER-FUCHS v. ALAN FURMAN & CO., INC.
• The ADA A Legal Obligation You Can’t Afford to Avoid
Tuesday, April 13, 2021
AT: 04/13/2021 07:03:35 AM
TAGS: ADA, SEO, WAVE, 2021, ADA COMPLIANCE, CONTENT, COOKIES, MOBILE, RESPONSIVE WEBSITE DESIGN, SHOPIFY, SQUARESPACE, VIRAL NEWS, WEBSITES, WIX, WORDPRESS, SIRE STRUCTURE, WEBSITE DESIGN,
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