Just since 2015, 300 lawsuits have been filed in or moved to federal courts regarding website accessibility.

Lindsay Moore, Zmags

In this first installment of a two-part series, the importance of website accessibility and the formulation of regulation under the Americans with Disabilities Act (ADA) as it relates to e-commerce are discussed. In part two, the discussion extends to options for improving website accessibility without compromising the essence of e-commerce design — the customer experience.

E-commerce used to be a simple proposition: an extension of brick-and-mortar stores online that offered internet adventurers the opportunity to buy goods and services from the comfort of their computer screen.

As the popularity of e-commerce has grown, at some stage, we started discussing the design of e-commerce websites as customer experiences (UX and DX) — the more rich and immersive, the better. A whole branch of the design ecosystem has grown up pushing “digital possibility” to create customer experiences that capture consumers’ attention, moving them efficiently toward the checkout.

And the rest is, as they say, history. Well, not quite.

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In defining the customer (and the customer experience), the e-commerce industry has inadvertently taken a narrow view of who its customers are. Specifically, e-commerce builds often neglect the principal of inclusivity. According to the U.S. Census Bureau, nearly one in five U.S. citizens has some form of disability, which is a significant unaddressed slice of the population.

Rather, the tendency is to create websites with an ideal user in mind — someone with all senses and physical abilities in working order.

Many websites fail to incorporate or activate the features that enable assistive technology to work.

Regulatory authorities, of course, take an entirely different view, enshrining inclusivity in the law. But when it comes to the fast-changing digital landscape, the law makers are lagging behind. What we have is a situation where website accessibility is heavily interpreted under the provisions of Title III of the ADA by both the courts and the Department of Justice (DOJ), but with varying conclusions.

And ambiguity is not good for the e-commerce industry. The steady shift in retail from traditional brick-and-mortar stores to online commerce has brought increased attention to website accessibility. Since January 2015, more than 300 lawsuits have been filed in or removed to federal court relating to website accessibility, and that number continues to steadily grow.

The ADA was enacted in 1990 by the U.S. Congress to provide protections and accommodations for disabled Americans. As mentioned above, the most pertinent part of the ADA is Title III. It states that “no individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.”

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The notion of public accommodation implies a physical place (like a brick-and-mortar store), but following several high-profile court cases, that definition for some has been extended to include non-physical locations, like websites. Still other courts have sought to limit the definition of “public accommodation” to situations where there is a “nexus” between the use of the website and enjoyment of the goods and services offered at the retailer’s physical store.

In these instances, courts have determined that it is unlawful to deny disabled individuals the opportunity to participate in programs, goods or services offered via websites — and to ensure full and equal enjoyment of them. Furthermore, the DOJ has entered into several settlements — including with online-only companies — finding the companies’ inaccessible websites in violation of Title III and requiring the companies to make certain “reasonable modifications” to ensure effective access.

Many disabled individuals use assistive technology that enables them to navigate websites or access information contained on those sites. For example, blind consumers are able to navigate the web with the help of a screen reader, a program that can read the text of a webpage and convert it into audio. Screen readers can also identify links and graphics to help users navigate using a keyboard instead of a mouse.

In order for a screen reader to work on a website, the site must generally use proper headers, alternate descriptive text embedded behind images, and code that is comprehensible to screen readers.

Yet, many websites fail to incorporate or activate the features that enable assistive technology to work. Common barriers include uncaptioned video (a problem if you are deaf) and images that have no descriptive alternate text, or websites that are simply not coded correctly so that screen readers falter or get stuck on an image and simply read “image” or “blank” aloud without continuing across the page (a problem if you are blind).

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A Question of Standards

In the U.S., surprisingly, there is currently no mandatory technical standard for e-commerce companies to adhere to for website accessibility. That said, the DOJ (the primary enforcer of the ADA), generally views the principles and guidelines that are laid out in the Web Content Accessibility Guidelines 2.0 Level AA (“WCAG 2.0 AA”) as an acceptable level of adherence to the ADA.

Within the e-commerce industry, there is an apparent low level of awareness of WCAG 2.0 AA. Brand-side CMOs, designers and coders are increasingly caught off guard, and the growing number of lawsuits relating to accessibility issues is testament to that fact. And while inclusivity is absolutely fundamental to creating a compelling customer experience, re-coding that experience can be cost-prohibitive. In some sense, the industry is stuck between a rock and a hard place.

In part two of this series, we’ll discuss how e-commerce companies can get to a win-win — creating beautiful experiences that are, in fact, inclusive to everyone.

Zmags provides content-creation software for online retailers. Kelley Drye & Warren LLP is a law firm based in New York City.

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