Website accessibility and the formulation of regulation under the Americans with Disabilities Act (ADA) as it relates to ecommerce is a topic that continues to challenge retailers. Ecommerce was first introduced in the 1960s via an electronic data interchange on value-added networks. It used to be very simple: an extension of brick-and-mortar stores that offers buying and selling online, offering ease and comfort to the shopper from their computer screen.
Of course, as the Internet access became more widely available, so did the advent of popular online sellers in the 1990s and early 2000s. At some stage, we started discussing the design of ecommerce websites as customer experiences (CX, 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.
In defining the customer (and the customer experience), the ecommerce industry has inadvertently taken a narrow view of who its customers are. Specifically, ecommerce 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 number of people who are not addressed.
Rather, the tendency is to create websites with an ideal user in mind - someone with all senses and physical abilities in working order.
Regulatory authorities, of course, take an entirely different view, enshrining inclusivity in the law. 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.
The steady shift in retail from traditional brick-and-mortar stores to online commerce has brought increased attention to website accessibility. More than 300 lawsuits have been filed in or removed to federal court relating to website accessibility since Jan. 2015. And that number continues to steadily grow.
In 1990, The ADA was enacted 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."
Confusion about the definition of public accommodation adds to the issue. 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).
In the U.S., surprisingly, there is currently no mandatory technical standard for ecommerce companies to adhere to for website accessibility. It's no wonder that standards are in question. However, the DOJ (the primary enforcer of the ADA), generally views the principals 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.
Brand-side CMOs, designers and coders are continually caught off guard, and the number of lawsuits relating to accessibility issues continues to grow demonstrating a low level of WCAG 2.0 AA within the ecommerce industry. 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.
Stay tuned for part two, which discusses options for improving website accessibility without compromising the essence of ecommerce design - the customer experience.
Lindsay Moore is vice president, strategy, at Zmags. A thought leader on shoppable content, she creates primary research about online content conversion strategies that drive revenue and meaningful brand engagements. Lindsay also advises retailers on how to improve their conversion rates through rich shoppable experiences. For more information on Zmags, please visit their website and follow the company on LinkedIn, Facebook and Twitter.
Gonzalo Mon, Partner at Kelley Drye & Warren LLP, helps clients with all aspects of advertising and promoting their brands. He works creatively with clients to ensure that their campaigns advance their business goals, while complying with laws that are often unclear. Gonzalo drafts and negotiates the agreements that underlie many of his client's marketing campaigns. He also advises clients about how the ADA applies in the digital space, and he has negotiated several settlements involving website accessibility.
Crystal Skelton, Senior Associate at Kelley Drye & Warren LLP, represents a wide array of clients - from tech startups to established companies - in privacy and data security, advertising and marketing, and other consumer protection matters. Crystal also helps companies balance legal risks and business objectives to minimize the potential for regulator, competitor or consumer challenge. In addition, Crystal assist clients in complying with accessibility standards and regulations implementing the ADA, including counseling companies on website accessibility. She has negotiated several settlements involving website accessibility.