“Accessibility” as it relates to the Americans With Disabilities Act, is about providing equal access to individuals with disabilities. Usually, we tend to think of accessibility in terms of ramps and rails; many think of the physical world and the accommodations required for people experiencing barriers to access due to vision, hearing or mobility disabilities.
AudioEye focuses on digital accessibility and providing the “ramps and rails” needed for access to the digital world. The ADA Tile III prohibits “… discrimination on the basis of disability in the activities of places of public accommodations …” Today, that includes the Internet; which means “accessibility” poses a much bigger issue, and like the Internet itself, impacts a much bigger population. In fact, the World Health Organization (WHO) estimates that more than 15% of the world’s population has a disability that may prevent them from equal access to digital content.
The Americans with Disabilities Act, or ADA, grew out of the Civil Rights Movement of the 1960’s, however discrimination against people with disabilities was not addressed until 1973 when Section 504 of the Rehabilitation Act of 1973 became law; it was later passed by George H.W. Bush on July 26, 1990.
Since then, advocacy groups representing millions of Americans and people around the world who are prevented from equal access both in the physical and digital world, have fought to make the world more inclusive and guarantee the rights of individuals under their respective laws.
ADA Title III is a Regulation which prohibits discrimination on the basis of disability in the activities of places of public accommodations (business that are generally open to the public and that fall into one of 12 categories listed by the ADA), and requires newly constructed or altered places of public accommodation – as well as commercial facilities (privately owned, nonresidential facilities such as factories, warehouses or office buildings) – to comply with the ADA Standards. Today, these places of public accommodation include the Internet.
It is also important to note that financial institutions fall into one of the 12 categories listed by the ADA, under the category of services.
Section 508 of the Rehabilitation Act of 1973 is a Law that requires Federal agencies to make their electronic and information technology (EIT) accessible to people with disabilities. It is important to note that compliance with Section 508 is required by vendors doing business with federal agencies.
The Web Content Accessibility Guidelines (WCAG) 2.0 are globally recognized voluntary consensus standards for web content and information and communication technology (ICT).
In a landmark settlement agreement in 2011 with the District Court in Northern California, Wells Fargo was forced to pay $16M in compensation for those who experienced discrimination in violation of Title III of the Americans with Disabilities Act (ADA). The settlement agreement requires Wells Fargo to, among several other things, ensure that its ATMs and websites are accessible to individuals with disabilities.
Countless other commercial settlements have taken place, which mandate conformance to WCAG 2.0 under claims of discrimination in violation of Title III. Some well-known cases include:
- Bank of America - 2015
- Charles Schwab - 2012
- H&R Block - 2014
- E Trade - 2016
- San Francisco Federal Credit Union - 2016
- TD Bank, Capital One, M&T Bank, New York Community Bank, Valley National Bank, Ponce de Leon Federal Bank, Emigrant Savings Bank, Banco Popular, Dime Savings Bank, Flushing Savings Bank, Northfield Savings, and Hudson Valley Bank - 2014
Financial Institutions can represent compliance by marketing their commitment to compliance for all who visit the site. This can be done through the addition of:
- Accessibility Statement
Partnering with AudioEye is a great way to show this commitment, to both customers and auditors. Our certification statement, which includes phrases like: “The AudioEye Certification seal represents a commitment to accessibility and inclusion. The certification process involves automatic and manual testing with the goal of meeting WCAG 2.0 Level AA Standards. By focusing on web accessibility best practices, this website has been optimized for use with 3rd party assistive technology”
When a Financial Institution chooses to make compliance part of their mission, they want to highlight this pledge. Compliance is also represented through usability - having a site that is accessible and usable means considering the use case of individuals with varying abilities.
There are free automated tools available to test website compliance. The problem is too many of these free tools fall short of achieving a true understanding of the site’s accessibility. Many of the tools are not able to recognize advanced techniques currently utilized. These tools can be a good start, but the financial institution should use something more comprehensive. Automatic testing is a good start, but manual testing is essential, as well. There are many aspects of compliance that can only be discovered through manual testing. AudioEye engages in both automated and manual testing, ensuring a comprehensive view of compliance.
ADA Policy can (and should be) expansive to include everything from physical ADA requirements (think ramps and rails) and the broad adoption of universal design principles across the entire organization, to web and digital accessibility requirements, which should cover not only websites and native applications, but also policies that consider such topics as emails, vendor selection, 3rd party content/service providers, assistive technologies, alternative access, help & support, etc. A lot of this is internal- everything should be accessible.
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To ensure compliance with ADA Title II/III, Section 504, Section 508 Standards for Electronic and Information Technology as they pertain to ‘Software Applications and Operating Systems’ and 'Web-based intranet and internet information and applications' (1194.22), and any future changes in conjunction with the Section 508 (ICT Refresh), and any applicable state laws, AudioEye tests against internationally recognized W3C Web Content Accessibility Guidelines (WCAG) 2.0 Level AA Success Criteria. These tests are conducted through, both, automated and manual processes, which are facilitated and managed through the Digital Accessibility Platform.
Consistently, year-over-year, ADA Title III Lawsuits continue to increase and, according to the Seyfarth Shaw ADA Title III team, “website and mobile app accessibility lawsuits have become more common, with lawsuits being brought in new jurisdictions” (Source article: "2017 Federal ADA Title III Lawsuit Numbers 18% Higher than 2016").
The Department of Justice, under President Obama, had proposed that regulations for public accommodations websites would be issued in 2018. The presumption was that the DOJ was waiting to piggy back on the finalization of the Section 508 ICT refresh, which, now complete, mandates federal agency websites to conform with WCAG 2.0 AA. This timeline was thrown out the window with President Trump’s Executive Order requiring that, among other considerations detrimental to any prospect of the new accessibility regulation, at least two existing regulations be repealed for each new regulation.
Regardless of the DOJ’s decision to not introduce new accessibility regulations for places of public accommodation, most experts agree, by not ruling, it forces advocates and plaintiffs to file lawsuits, which present more immediate challenges to businesses and organizations seeking to mitigate risk and avoid costly legal challenges. Although the DOJ has yet to issue specific regulations pertaining to website accessibility, they have consistently taken positions that Title III does cover access to websites. The list of defendants successfully arguing against plaintiffs claiming discrimination related to web accessibility under Title III pales in comparison to the list of settlements executed by business and organizations falling on their sword to address the issues, retroactively. “Though some may think that businesses are better off with no regulations on this subject, we disagree. The current tsunami of lawsuits and demand letters about allegedly inaccessible websites is the result of uncertainly and absence of regulations that impose reasonable rules that provide adequate time for businesses to comply. This is one issue upon which virtually all who practice in this space – on the legal, technological, or advocacy side – agree.”(Source article: "Executive Order Likely Dooms Website Regulations for Public Accommodations")
Taking a proactive approach to address accessibility is, far and away, the best option for saving time and money, while doing the right thing for your end-users and eliminating the risks that come with non-compliance.
As of July 2017, the Department of Justice had placed Website Rulemaking on the “Inactive List.”
Web Accessibility Compliance is centered around the Web Content Accessibility Guidelines (WCAG) 2.0, which provides specific requirements for designers, developers, and content authors for creating and publishing accessible digital content. To ensure content is presented and maintained in an accessible manner, each of these accessibility stakeholders must take steps to consider the use case of individuals with varying abilities. By following WCAG 2.0 guidelines, businesses and organizations can improve the quality of their products and services, while providing a more accessible and usable user experience for everyone. Since conforming to WCAG 2.0 alone may not be enough to ensure an optimal user experience, additional measures must be taken by accessibility stakeholders to test and validate the user experience from the perspective of individuals relying on the use of assistive technologies to access site content, as well as other disability use cases that require additional considerations.
For any business or organization, non-compliance comes with a lot of risk. An inaccessible website will impact end-users’ ability to access content, which may lead to lost opportunities to connect with those individuals. This issue may perpetuate itself and can lead to a much broader missed opportunity if those individuals impacted by the inaccessible user experience share their frustration with friends and family, who may choose to take their business, elsewhere. The disability market represents an annual disposable income of ‘$3.9 Trillion when you include friends and family’ (Source document: The Global Economics of Disability Annual Report from The Return on Disability Company). Since accessibility and the usability of a website directly impacts a business or organization’s users and user-base, those in charge of creating and publishing web content should take measure to ensure accessibility requirements are met.
In addition to the above, if an inaccessible user experience prevents access by not meeting the needs of a specific disability use case, it may be determined to be discriminatory, which presents a legal risk. Compliance managers and those charged with managing the legal risks of the business or organizations must understand the laws and legal precedence, which may have an impact. Risk managers should advocate to ensure leaders within the business or organization are taking preventative measures to avoid any such risk, especially one as preventable as digital accessibility.
ADA Policy can (and should) be expansive to include everything from physical ADA requirements (think ramps and rails) and the broad adoption of universal design principles across the entire organization, to web and digital accessibility requirements, which should cover not only websites and native applications, but also policies that consider such topics as emails, vendor selection, 3rd party content/service providers, assistive technologies, alternative access, help & support, etc.
- Strives to conform with Web Content Accessibility Guidelines (WCAG) 2.0 AA (or higher) by conducting regular accessibility and usability audits and takes the necessary steps to remediate issues, while preventing new issues from being released to production environments through a concerted effort that involves designers, developers and content creators who consider digital inclusion and the principles of Universal Design in their daily work.
- Provides end-users with a means for reporting issues of accessibility and takes action should issues be identified that require remedy.
- As a bonus, supplies end-users with free assistive tools that allow them to personalize their user experience to meet their individual needs without requiring access to 3rd party software solutions to provide the level of assistive support they may require.
- Continually trains resources to many topics related to Digital Inclusion and ensuring content is created with digital inclusion in mind.
- Promotes the business or organization’s commitment to accessibility through a public facing statement, such as an Accessibility Policy Statement, typically made available in the footer of a website (or in conjunction with other policy statements). The Accessibility Statement should outline any outstanding known issues of accessibility that are either being worked on or may pose an undue burden that prevents the business or organization from addressing. Inaccessible third-party solutions are detailed through partial conformance statements that outline the different inaccessible components of those offerings (should they exist).