It is not surprising that many businesses today are looking for effective and efficient ways to avoid claims and litigation by bringing their websites into compliance with the Americans with Disabilities Act (“ADA”) and Section 508 of the Rehabilitation Act. Certainly, taking steps to eliminate costly and time-consuming lawsuits makes sense. Since 2017, the U.S. has experienced steady and significant growth in the filing of digital accessibility lawsuits. Though filings slowed a bit during the first half of 2020 as the result of pandemic-related shutdowns, during the latter half of that year, the upward trend returned.
The sudden demand for broad digital business presence generated by Covid-19 has caused organizations to both embrace this digital opportunity and attempt to mitigate the risks that come with it. For many, implementing a new digital storefront has been a completely new experience, and trying to understand and comply with unfamiliar and evolving accessibility standards, like the Web Content Accessibility Guidelines (WCAG), has been overwhelming. Any “fix” that promises a quick solution can be appealing.
There are several ways for businesses with a digital presence to deal with accessibility challenges. Unfortunately, some companies are willing to settle for the easiest and least costly means of solving the problem. These approaches often leave firms exposed and can create additional challenges.
What are accessibility overlays?
Simply put, accessibility overlays are tools comprised of automated software patches that at least claim to resolve access problems by quickly detecting them and imposing a fix. These come in the form of plug-in tools, toolbars, or other apps that can capture at least some digital accessibility concerns on a website and offer an immediate, though often unsustainable, repair.
Unfortunately, these fixes are superficial in that they do not actually change or modify the website source code. Rather, accessibility overlays employ a snippet of JavaScript which can typically detect some rudimentary accessibility issues, including the size of text or contrasts in color, and then make changes to improve these features for people with disabilities.
More robust customized overlay solutions may offer an icon leading to some tools to improve accessibility. Though often better than the generic version they still typically do not touch the source code where the real and more time-consuming work needs to be done to implement a thorough and permanent fix. Additionally, an unintended consequence of these add-on solutions is to impose yet another task that a person with a disability must learn to fully enjoy the benefits of the website.
Why then are accessibility overlays gaining popularity?
Overlays are tempting for organizations and businesses looking for a fast and inexpensive solution to accessibility compliance. The problem with a band-aid approach to solving any problem, and in particular digital accessibility challenges, is that they do provide a feeling of comfort and a false sense of security. Overlays can cover up the worst accessibility barriers but as mentioned, can never really address fundamental accessibility shortcomings.
Nevertheless, while firms may discover early on that their websites must be accessible, they don’t necessarily have ready access to the knowledge or allocated financial resources to properly address the problems. Understandably, many businesses turn to overlay tools that appear appealingly simple.
Risks of utilizing accessibility overlays
Among industry experts, overlay inadequacies are well known. Some estimate that overlays will generally detect only 30% of the accessibility issues impacting a website. The promised "simple" overlay solution can in fact lead to problems.
Fixes will not comply with WCAG
The Web Content Accessibility Guidelines are technical standards that describe ways to make websites and their content more accessible to people with disabilities. Conforming with WCAG is not easy. There is an intensive process involved which typically requires input from experts, site and source code remediation, and parallel testing by actual site users.
There is really no comparison between the results derived from this detailed process and the non-remedial overlay results that don’t satisfy WCAG. While there is not yet a definitive court ruling or edict from the Justice Department endorsing WCAG compliance as a safe harbor, there is no question that WCAG compliance will be the standard going forward and compliance with WCAG will be a major step in deterring lawsuits.
Lawsuits have recognized the ineffectiveness of overlays
In Douglass v. Masterbuilt Manufacturing, the District Court for the Western District of Pennsylvania specifically noted the negative consequences of an attempted website fix using accessibility overlays:
“On September 2, 2020, Defendant installed a $49/month plugin that the plugin’s maker represents will ‘turn inaccessible websites into WCAG and ADA compliant websites.’ However, notwithstanding this marketing, the plugin seems to have actually made Defendant’s Digital Platform less accessible…”
This is not encouraging for overlay proponents and should be a red flag for those seeking a quick fix solution.
Conclusion
Clearly, overlays will not solve the ongoing problem of digital accessibility. Importantly, the easily available solution will likely make things worse as users are fooled into thinking the problem has been solved when in fact, little if anything has been accomplished to remediate the problem at its source.
Making your website compliant with ADA and Section 508 requirements as well as other global regulations that are evolving takes time and hard work. The necessary multi-pronged approach is the only means of dealing with the root cause of accessibility issues. There are ways to assure that you create a website that both complies with the law and creates a rewarding, obstacle-free experience for your customers, one that keeps them coming back.
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