How Do You Approach Making Your Website Accessible after Receiving a Demand Letter? Here Are 3 Accessibility Remediation Strategies to Consider
This article on accessibility remediation strategies is reprinted, with updates and modifications, from the November 2016 issue of Mealey’s™ Litigation Report: Cyber Tech & E-Commerce. It was originally published as Successful Remediation Strategies For Websites Under Litigation. Mealey’s is a subscription-based information provider and a division of LexisNexis. Copyright ©2017 by Hiram Kuykendall. Responses welcome.
The Americans with Disabilities Act (ADA) has required non-discriminatory physical access to brick and mortar businesses and other organizations for more than 25 years. As business and information have moved online, so have the principles of equal access—and the very real risk of litigation.
In the United States, online accessibility has thus far been required only for government organizations. However, ever-increasing legal precedent is reinforcing expectations that digital assets and resources from any industry be perceivable by everyone, including those who are blind or have low vision, are part of the Deaf community or are hard of hearing, have mobility impairments, or have cognitive challenges. This includes compatibility with assistive devices that people with disabilities often use.
Retail, restaurants, financial services, real estate, and other industries are being caught off guard by demand letters and lawsuits stating that their websites discriminate against people with disabilities, thus violating the ADA. All of a sudden, it seems to them, these organizations face not only potential legal costs and penalties, but the negative perception of intentionally discriminating against an entire community. The reality is that many times, the concept of online accessibility is completely new to them, as is figuring out how to approach fixing the offending site.
With the flurry of accessibility litigation, several remediation strategy patterns have emerged. While each organization and complaint is unique, the accessibility remediation strategies fall into one of three categories: Discontinue Site All or In Part, Staged Remediation, and Single Remediation.
Discontinue Site All or In Part
One of the most effective strategies against litigation has been to discontinue all or part of the offending website. The basic strategy is to review each section of the site and evaluate the impact to the organization’s reputation, marketing, and revenue.
Areas of Success
- Simple Page – Frequently an organization is not prepared to undertake a complete site redesign and believe that the website is only providing basic information. For example, website analytics can indicate that visitors primarily look for store locations and times rather than accessing website blogs, calendars, and videos. In these cases, the complex site may be discontinued completely or replaced with a simple one- to three-page accessible site containing core information. This strategy has been very effective in stopping litigation early in the process.
- Ecommerce – In some cases, the website contained an online store or similarly complex feature that was not generating sufficient revenue to justify the cost of the remediation. In other cases the feature was provided by a third party and not within the organizations immediate control. In these cases, organizations determined that removing the complex function was more cost effective than either remediating the existing feature or migrating to a new technology. This strategy has been effective when the primary complaint is against the offending feature.
Observed General Business Characteristics
- Primarily applies to businesses with physical presences.
- The website was not a major revenue producer.
- The organization was prepared and able to take down the website in whole or in part without impacting marketing or customer service efforts.
Staged remediation is simply remediating portions of a site according to a prioritization schedule. This includes multiple smaller deployments rather than a wholesale, sitewide remediation and deployment. The goal is to push remediation changes quickly, thereby making the site increasingly accessible.
There are several benefits and costs to this approach.
- Shows Commitment – The number one benefit of this approach is that the organization can demonstrate a commitment to change quickly, providing customers with immediate enhancements.
- Priority – Some features of a website may have a perceived higher remediation priority by the organization. For example, accessibility issues related to web-based job application processes could run afoul of Americans with Disabilities Act, Title 1–Employment. In this instance, leadership may elect to prioritize these elements for immediate remediation and deploy them independent of the other parts of the website.
- Website Development Pattern – Modern brochure (informational) websites are built in layers. The natural remediation path will be to remediate from the sitewide components working toward content-specific failures. At a high level, the layers that can be deployed at staged intervals include:
- Template Level – Most sites will be based on a limited number of templates. This layer contains features common to groups of pages on a website, including menus, headers and footers, and other specified areas for content. Related items can include fonts, colors, and other elements. If a template has defects related to how a user of assistive technology perceives the website, or how a person with mobility challenges and is a keyboard-only user navigates the website, it hampers accessibility on a broad level. Since templates are used sitewide, making accessibility corrections at this level will have an immediate positive effect for these categories of users. Another benefit of pushing template changes quickly is the overall number of errors drops proportionately. If a site contains 300 pages and a common template has three accessibility errors, then there are effectively 900 errors since each page will contain the three errors. By eliminating the three errors in the template you effectively reduce the sitewide error count by 900 errors.
- Complex Feature Level – Frequently a website will contain a complex feature that is used on multiple pages or in parts of a template. For example, advertising carousels that rotate through messages or images almost always present accessibility defects. They can be used in varying locations within a website. Since these are unique and complex features, it will take longer to remediate, making them good candidates for second deployment. As with the template remediation efforts, these too will reduce errors on multiple pages, thereby lowering the overall error count. Other examples of complex features include site search functions, menus, contact forms, and videos.
- Page Level – While each page of a site is wrapped in a template, ultimately each unique page must be evaluated for accessibility. A page may contain custom elements that are not common to the site, content with defects such as spelling or grammar errors, or other technical failures. From a remediation standpoint, teams of properly trained content editors can begin the process of remediating page-level issues once the surrounding templates and features have reached a degree of maturity or the content changes are independent of the first two development efforts. As such, this tends to be the third and final push, though many remediation efforts can occur sooner.
While staged deployments have many benefits, there are costs to the organization. Some of these costs include:
- Longer Remediation Cycles – Every deployment must go through a development, testing, release, and verification process to ensure the quality of the product. Many organizations do not have staff dedicated to the website, which means the developers, quality assurance staff, and deployment staff must undertake a full release cycle while continuing to develop. This dual role can extend a project by several days per release. For example, if a small development group is planning template launch followed by a complex feature launch and ending with a final remediation deployment, then the project could be extended by nine days if they have a three-day release process. Larger organizations may not fare any better since they potentially have more rigid production deployment requirements and schedules. As such, the more deployment events, the longer a project will take.
- Increased Cost – In theory, the longer development cycles increase the total time of the remediation event. That means both real and opportunity costs increase as the event is prolonged.
- Cited Defect Counts – It is interesting that most complaints list the number of pages with defects rather than total defect counts. Frequently the complaint will reference Web Content Accessibility Guidelines (or “WCAG,” a series of guidelines published by the primary international standards organization for the internet), followed by the number of pages failing in relation to total pages (See Figure 1). If the organization has agreed to reduce the number of pages with errors, then partial remediation will be of little value since a single failure will cause the entire page to fail and thus not reduce the count. In these instances, there is less value in a staged approach.
Observed General Business Characteristics
- Websites tend to be public brochure sites.
- The perceived benefit of early, staged deployments outweighs the increase in remediation time.
The final strategy is to simply remediate, test, deploy, and monitor in a single remediation effort. Some top examples of situations that lend themselves to this methodology include:
- Complex Application – Many websites are very complex and do not lend themselves to partial releases. For example, substantially flawed retail websites can take a great amount of effort to remediate, test, and redeploy. In these instances, a comprehensive plan to replace or remediate and redeploy a full presence may be the most efficient method.
- Budget Constraints – As previously mentioned, total time for the remediation event could be extended when considering a staged approach. Organizations that have budget constraints may be able to perform a single event remediation in a shorter and more cost-effective manner.
- Proactive Remediation – Organizations that elect to remediate in advance of any external influence have the luxury of setting their own pace. This allows the organization the flexibility of shifting resources as required, thereby reducing opportunity losses and hopefully, operational costs. Once litigation begins, the pressure to show real and meaningful change immediately increases, as does the ability to enhance a positive, inclusive reputation in the marketplace.
Observed General Business Characteristics
- More complex remediation efforts.
- Larger scope projects that are not easily segmented.
- Proactive organizations who have actively investigated accessibility.
In summary, these strategies combine to offer the organization a variety of choices based on their individual situations. The resources available to the organization, the complexity and scope of the website, the financial implications, reputation implications, and the nature of the complaint must be considered when choosing a path.
Additional Accessibility Information
For Further Reading, Consider
- The Berkeley Web Accessibility Ruling
- VPATs and Section 508 Accessibility Compliance
- Accessible Web Design: Governments Tackle It, Businesses Pressed to Do the Same
- Blind Website Users Drive Online Accessibility; Federal Guidance at Risk
Microassist Accessibility Services
Outlining a host of accessibility-related services, Microassist Accessibility Services: Barrier-Free Digital Development, provides background on Microassist expertise and the various offerings available for digital content and platforms. Services cover accessible elearning development, accessible website and application development, and audit and remediation services.
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