Should Your Company Use an Accessibility Overlay?

Transcript for Should I Use an Overlay (accessibility widget)

Hi, everybody. Welcome to the accessibility plus panel called should I use an overlay. I'm Sherri Byrne Haber, I'm going to moderate this panel. I'm an accessibility architect with VMware. And with me I have two outstanding experts in the field of accessibility Jeremy Horelick, Jeremy would you like to introduce yourself.

Hi, thanks Sherri. Yes, so my name is Jeremy Horelick, I am the vise president of business development at ADA site compliance. We are a full service consultancy in the web accessibility digital accessibility space. And mostly in my job, I'm looking at companies that have been usually sued for inaccessibility. And spending a lot of time with them trying to find solutions for them that will help them resolve their litigation. But more importantly, make their digital assets fully usable and accessible for all.

Thanks Jeremy and we also have Jason Taylor. Jason you're in a secret accessibility hideout somewhere but wouldn't you like to introduce yourself.

Yes Sherri, thank you so much. Yeah I apologize photo only, I am indisposed in front of the location but we wanted to make sure that we got this recorded. My name is Jason Taylor, I work for Usablenet and I've been in the accessibility business or industry for about 20 years. I started very early on working with companies like Macromedia, Dreamweaver and Microsoft Front Page.

And we basically helped to build testing solutions for section five weight back in the day in 2001, 2002 when that first came out. So basically worked with lots of different companies in the last 20 years, essentially ensuring that their building experiences on the web and on native apps to be as accessible and usable by all.

Great, so what we're going to do in this panel is we're going to do a quick five minute introduction to overlays. Because we don't know that everybody who's on this call even knows what an overlay is. And then I have a list of questions and we're going to kind of have a conversational discussion in answering those questions.

So first of all, what are overlays? The symbol for the overlay is kind of universally this vitruvian man. And I've put up some samples here that you can see what it looks like. These are three different icons for three different overlay companies but they all kind sort of look the same. And there are other names for overlays. So we're going to just talk, we're going to use overlay I'm making air quotes around that as the universal term for the topic. Because they're also sometimes referred to as tools, plugins and widgets.

It's technology that is intended to improve website accessibility. It's always third party code, typically JavaScript, which sits on a server. And so what happens is when your web page loads, you will see one of these little icons. OK, I went to a company yesterday to buy a posture correction device and I loaded the page and sure enough one of these icons popped up. I did not click on the icon, I actually went and bought from a competitor. But anyways the icon comes up you click on the icon, it pops up a panel. And it makes a call to the server to check to see if there are any corrections that need to be made to that page.

But the important thing to understand is that it doesn't actually fix the underlying code. So you're reliant on this connection to the server and you have to pay an annual fee to these companies it's a service. So when that panel comes up and you choose one of those items on the panel, what happens is you have removed your connection to your assistive technology. So the way assistive technology works without overlays is you have your user, you have your assistive technology.

Which can include things like alternate input devices, hearing aids connected to iPhones or screen readers or magnification or special keyboards and then you have your destination. And the user uses the assistive technology to connect to the destination and then the destination round trips the information back to the user. So without overlays the control is entirely in the hands of the user. And users, especially users who've had used this assistive technology and had these disabilities for a long time typically have highly fine tuned settings.

So I had a coworker, who had his speech rate on his screen reader set to 325%. And with that speech rate plus his USB connected braille note taker, he could actually execute a Google query and interpret the results faster than I could. So assistive technology settings are really important and control in the hands the user is really important. Now once you add an overlay into that equation you still have your user and your assistive technology and your destination. But what's happening is the user is being forced to communicate directly with the overlay. And then that takes the assistive technology completely out of the equation, you have to use the overlays assistive technology.

So you have to learn how it works, you're stuck with its settings. Which may not include a 325% speech rate. Or in my case with one overlay that I've seen it allows me to select vision loss, or it allows me to select motion sensitive, but it doesn't allow me to select both and I am both. And I don't want to prioritize one over the other. So then the overlay communicates straight back both to the destination and then straight back to the user. So with overlays you've got no assistive technology of yours at all, you're only using the overlay.

So just we're not going to be picking on any one individual company in this discussion. We're going to be talking about the solution approach in general. And there's a list here of some of the overlay widget plug-in, tool vendors, AccessiBE, User 1st, UserWay, AudioEye, EqualWeb those top five are probably the best known. And then there's a few more that are starting to enter the market as overlay companies have been able to get successful funding from venture capital, On The Map Marketing, Max Web, Accessibility Enabler, cybertegic haven't heard of that one before and Adapt My Web.

OK, so now that we are done with the introduction. I am going to switch over to the conversation and I'm going to stop that. So our pictures are a little bit larger here we go. OK, so we have identified a number of claims that overlays make on their websites and in their marketing materials. And this is actually in their language.

And we're going to be talking about some of these claims and why it might be a little bit more smoke than fire. So Jeremy the first question goes to you. One of the overlay companies claims that WCAG compliance is dictated by the Americans with Disabilities Act, that it's actually required. Can you talk to us a little bit about how and why that might not be the case all the time.

Sure happy to, so by the letter of the law, it's just not the case there's no mention of the Web Content Accessibility Guidelines, or the WCAG some people say WCAG in the 1990 Americans with Disabilities Act that most.

And the internet didn't even exist when the Americans with Disabilities Act was passed not in any commercial form anyways.

You beat me to it, I was going to say the first commercial browsers were still about four or five years away. I remember because without dating myself, I was getting to college in the mid 90s and didn't know what a browser was until my freshman year. So how could that statute have possibly been that forward looking. So but Title III of the ADA prohibits discrimination on the basis of disability in the activities of what are known as PPAs or places of public accommodation.

So nowhere does it claim that websites must adhere to WCAG. As we said there's no mention of websites at all, since we were still several years away from those first commercial browsers. In practice WCAG has become the standard that most courts use and it's the standard that plaintiffs cite in their complaints against businesses and against government entities. So WCAG is essentially now a de facto standard.

But one challenge here is that WCAG is always changing. There are different versions that outline new what are known as success criteria. So even if the ADA did mention WCAG which again it doesn't, which standards would apply? Would it be 2.0, 2.1, 2.2, 3.0. So let's to be clear making a website and other digital assets conform it with WCAG is certainly a laudable goal but it is not mandated by the ADA. So no this claim that some overlay companies are making is false.

So there are specific versions of WCAG identified in section 508, right. Which is the criteria that the federal government is supposed to follow.

Yes.

Yeah, so that one in particular references to double-a but you're right. That we've got three versions of WCAG out right now and two more coming. 2.2 is coming hopefully in Q1 of next year and 3.0 is still a ways off. We're looking at another 2 and 1/2 three years before that one is going to be final.

Right and just not to jump too deep into the weeds here. But as you point out, you have section 508, you have the Rehab Act there are other statutes and other laws under which claims are broad, there are also state level claims. So it's not just about the federal ADA you also have things like the New York Civil Rights Act and the Unruh act in California, so it's not just about the ADA all the time.

Sometimes referred to the Unruh act as the ADA on steroids. Because not only does it adopt the ADA and say, de facto a violation of the ADA is a violation of the Unruh act. But it also provides for automatic damages, which the financial damages, which the ADA does not. The ADA only entitles you to injunctive relief, which means you can require the company to become accessible.

Injunctive relief and fees.

Yeah and fees.

Jeremy I wanted to sort of ask you, based on your sort of experience. One of the things that we see because of what you outlined in this sort of there isn't a clear definition of ADA. OK, so what is compliance to the ADA that seems to provide an opportunity for companies who don't do a lot for accessibility to claim that's enough.

So you know I always look but why are these companies being successful, why are there thousands of companies adding this product to their website. I feel like it's worth understanding, it seems like that this sort of lack of clarity of what the ADA gives an opportunity for something that does something but not a lot to claim that's enough. Do you have an opinion about that?

It's a great question Jason I mean, it's really a steep learning curve for a lot of for a lot of companies. We're talking about private and public companies here that are not typically educated on the ADA, they might understand it in terms of physical barrier, premises causes of action. And I would argue that there really is no restaurant or hotel those are two of the biggest hit verticals in our space that doesn't understand the realities of the physical ADA.

But I think honestly it's just a lack of awareness and education. And so they want to reach for the thing that is it's the shiny object, right. These widgets and overlays they're sexy because they're inexpensive. And so they really want to believe that this is going to solve their problem but they haven't investigated this fully.

That really does tie nicely into my next question even though I didn't quite plan it that way. Which is that these widget companies overlay companies claim that they fix accessibility issues automatically. And some of them claim that they fix all or most I mean there's an adjective in front of accessibility issues. So Jason can you talk a little bit about why that's a problematic statement.

Yeah, I talk about it. I mean I go back to one of the things that you started in sort of explaining how these overlays typically work. So there are sort of two components one you see quite clearly if you're visually able and one that you don't see. So the one that you talked about the iPhone it pulls up a control panel. In that control panel seems for people who are uneducated really useful things that someone might need like change contrast color, increase font size.

But for anyone who actually understands accessibility and how accessibility technology works, typically people who have assistive technology want to control that themselves. They don't need another control panel to control that. So the first thing is that the claims that these sort of control panels can fix. For example the contrast color issues on a website is not technically true when it comes to, because the widget sits between the assistive technology and the website. And takes over the control of assistive technology. It takes away the power and features of the assistive technology.

In some cases, it's a sort of retro it makes it a worse experience for someone who's got assistive technology to rely on another technology but they don't know can't control to offer assistance with regard to a poorly coded website. The second component that you talked about is that and this is where they talk about the automatic update. And we can talk about the fact that some say it takes 48 hours for us to learn your website and we update your website.

So there's something is happening in the background as well. Which is a call out to a server that says, hey, I've got this page your widget on this page tell me if there's any updates to this page. Those updates can update HTML elements. And HTML elements can cause problems for assistive technology such as poorly labeled forms, missing Alt tags, headers, page title these are all elements that can be updated by that code.

The question is what is updating that code and who is involved update that code. So are the people involved checking the update and making sure the update is comparable meaningful or is it being done automatically. So in the cases where a company says, hey, we automatically update your code. But no one's checking how good that code is that's very questionable that those updates are going to be any good.

The second group, which typically cost more has a personal check in those updates. How much it's not clear but they will check the quality of those updates. But I think it's very important to understand that those updates are only able to be done in the HTML elements. And for those people out there that understand website simple sites that might be helpful, right. Which is why these widgets or overlays exist.

There's a million websites built off of CMS just informational base, potentially those updates could be useful. I would argue those updates are just as easy to do in the code, they aren't doing anything magical. They're not doing anything your web team couldn't do the guy that built your website the agency that built your website could do. So it's better to do it in the code than ask another company to do it and you're not sure what they're doing.

But the most important from a technical perspective is functionality is not H.M elements. So think of seat selection on an airline, think of picking a delivery destination on a retail site this stuff is built in complicated WCAG class the hard stuff, the cool stuff is built in angular.js is built in, it's built and built as components. Components are added to the website, none of these systems can update a component.

Yes they use JavaScript to code and change the HTML elements but they're not changing JavaScript on the page. So anything that's built in Java, anything that's built in JavaScript, anything that's complicated, anything is a component cannot be updated by their update. So if the keyboard trap, if the user issue is in functionality in interactions that has to be updated by updating the component or changing the actual JavaScript on the page.

So Jeremy some people don't realize that you can't automate accessibility testing to 100%. So the number that we use at VMware is 39%, we believe we've done some machine learning tools on top of a couple of commercial accessibility testers. So we think we've got it to 39%, how can you fix what you can't detect that means 61% can't be detected in an automated manner.

You can't, I think the answer is embedded in the question. I think and as Jason alluded to you have to have some sort of human component. You have to have human beings preferably those who have disabilities actually testing the website, testing the components that Jason just alluded to the more interactive parts of a website.

So ultimately can you make a reservation on that plane, can you book a reservation at the restaurant. Can you fill out a form and interact with company in real time. We see chat bots, I mean there's so many examples here where only human subjectivity can determine whether something is truly usable or not. So it's great 39 is a nice number, it's better than nothing certainly. But for companies that are relying on just automation and tools, they're never going to get to fully compliant. If the idea of full compliance even exists truly.

Yeah, we do try to avoid the phrase fully accessible at VMware because you never know what combination of disabilities might introduce something in the assistive technology that all of a sudden doesn't work. So a lot of the premise behind these overlays is kind of fear it reminds me of the mayhem commercials from Allstate. The guys running around and causing trees to fall on houses and things like that the fear of litigation.

So there were like what 4,500 lawsuits filed in the US last year alone regarding digital accessibility. So the overlay companies claim they're protecting you from day one, they're keeping you safe from lawsuits, that that's language directly from their websites. So Jeremy what are you really getting?

And I'll say Sherri that Jason's company and ours we both track these lawsuits that's I think a very fair number that 4,500 figure. And it wiggles a little bit depending on whether you include things at the state level or not. And whether you include other types of claims, such as things like online reservation systems or gift card suits there are other permutations. But I think that's a fair number.

One other footnote I would say, in addition to those 4,000 plus lawsuits you've probably got three or 4x that number of demands threats.

Oh, I've heard estimates of 10x, I would not be surprised. So why don't you explain for the people who aren't as embedded in accessibility minutia as we are what a demand letter is.

Yes, so a demand letter is just that initial correspondence/threat from a plaintiff's attorney usually, it's from the plaintiff but it's really being authored by the council. Saying, we're going to sue you make your website accessible and usable. And often they'll attach a copy of the preliminary suit that they've drafted.

And so as you point out it could be as many as 10 times the number of formal suits, when you're talking about the number of threads that are getting sent. These are often sent out by a couple of firms, they cast a wide net and they do it by industry a lot. So one instance is the real estate industry received Tens of thousands, potentially of these threats saying, get your stuff together or we're going to come after you and we'll see you in court. So that's the distinction there.

And by the way there's nothing in the law that says you have to give notice, there was briefly consideration of a law in Congress or a bill in Congress that would have required plaintiffs to exhaust administrative remedies before they could haul off and just sue you. But that bill has failed in several sessions of Congress. So they can plaintiffs firms that is can just sue you and you don't have to be given prior notice.

So are you being kept safe against lawsuits. The lawsuits that are being filed today or any of them being filed against websites that are using one of these overlays?

Yeah, by the way to wait way to bring it back because that was a detour that I had taken there. So thank you for getting us back on track. No there are hundreds of companies that have overlays running on their websites that are being sued. And that goes for big corporations, small and mid-sized businesses you name it. It's across industries the plaintiffs don't discriminate here.

So one of my roles at the company is to track every Title III and often Title II which are government public entities lawsuit that's filed in federal court and many of the state jurisdictions as well. So each morning I go onto the court wires, I see the suits that have been filed. I then go to the website that is named in the complaint and I take down some key data points. One of which is there a widget or an overlay on the site. And sometimes I'll take screengrabs of the website alongside a news website that day displaying today's date. So you can see the two side by side.

And of course, you can also use the Wayback Machine if you ever want to achieve this the same goal. But what's most disheartening is not that the sites that are using overlays and widgets are getting sued. I mean why wouldn't they, right. In most cases they haven't made the website accessible. Rather some of the overlay companies continue to insist that it's not, that it's one of their customers, that they're insisting that they've been sued after. That they're buying the product in response to having been sued.

What they'll say is, oh that company installed the overlay after they got sued. But what's funny is I've actually had email correspondence forwarded to me from defendants in lawsuits. In which the CEO of one of these companies that shall remain nameless makes this very claim. And I've seen this multiple times, he doesn't know or maybe he just doesn't care that some of us are watching this very closely.

And if the names of the overlay companies are actually in the litigation, which we've seen. Because we download the complaints and we read them where we're accessibility legal nerds. It couldn't possibly have been installed in response.

Correct, that's right.

So are there a couple of lawsuits in particular that you would call out that people should follow in order to know whether or not litigation against companies that are using overlays is going to be as successful, as litigation against companies that aren't using overlays?

These are all public record, I didn't I know the names of some of the defendants that have been sued. That had in which the widget or overlay is called out in the suit. I'm reluctant to single out one or two, there have been adjacent tracks this as closely as I do. I have a list right now just the last couple of months of about 20 different companies that have had the widget named in the lawsuit.

So I'm not going to again, I don't want to isolate one or two. I suppose people can follow up with me directly if they're curious, my contact information should be available. So I'm happy to share that info, it is all public though.

Well, to grind because I'm not selling anything pertaining to accessibility services.

Right.

So I'll say that the one lawsuit that I'm following most closely is the ADP lawsuit.

OK.

Because to me it's a very, very large plaintiff. And it's also not filed. Sorry it's a very, very large defendant and it was not filed by one of those serial filers. And it was not filed by one of those cookie cutter companies that goes out and shoots out 50 demand letters a day.

So I think that that's the lawsuit that's really going to drive going forward. And obviously, it'll take a while until they exhaust the appeals. They have to get through the first round of litigation and then they'll there's usually at least two appeals after that. So we're probably looking at another based on Domino's, the Domino's case and how long that's taken we're probably looking at five years, four to five years I would guess or that case is fully resolved. So going back, sorry it didn't mean to interrupt you Jason was there something that you wanted to add?

No, I just wanted to say but when I see the cases which Jeremy talks about, right. Especially companies that have put a widget on their site and they still get a lawsuit, it's not because they've done something significantly wrong, it's normally because they're small. They don't have a lot of time, they believe the marketing of these widget and overlay companies. And they put it on their site because they think they're doing the right thing.

They're not trying to be, they're not trying to do something wrong. But I felt doubly sorry for them because normally they're the smaller sized companies that have done this, which means a lawsuits even more costly for them, right. So you know this is why there's a lot of passion in the industry because we don't want small businesses being sued for accessibility.

Because it doesn't feel right that these smaller organizations are being sued because they're being given the wrong information. They probably could have gone to their website designer spend the same amount of money and fix the site. I mean this is why we're quite passionate about making sure that the right information is given to people about what they should do on a website. And how widgets and overlays are not helping those companies that are choosing them.

Well, there's even some evidence that using an overlay makes you a target for lawsuits, is there not Jeremy?

There is ample evidence now the overlay companies would disagree with that passionately as we've already asserted right. We're being a little bit gaslit here but one reason for this is that we know plaintiffs are well aware that these so-called solutions don't actually improve accessibility. So they see them rightly as a quick fix. And they figure again rightly that where there's smoke, there's fire.

So a second arguably more important reason that overlays are creating more risk is that it's managed to make the user experience even worse. For the reason the reasons that you touched on at the outset with how overlays work. And overlay companies know this. So the fact that they continue to assert that their products somehow protects you from day one is deceptive would be a charitable word.

So talk to me about excessive bye, bye then.

Oh gosh, I don't know what the current status of excessive bye, bye is maybe Jason can speak further. But I know that this was an attempt to halt the intrusion of one of the not to be named accessibility widget overlay companies that was trying to infiltrate itself. It was essentially an attempt to banish the code from running on the website. So that you could be protected from having this kind of foist upon you. That's a non-technical explanation because I'm a non-technical guy but Jason might be able to go deeper. Or maybe Sherri you actually know more on this.

No, I think probably most of the people listening to this are non-technical people also, so we should probably leave it at that layer.

OK.

If I start talking about DHCP, I think 95% of our audience is going to hit the pause button.

We've already talked about WCAG, Unruh, Civil rights we've gotten pretty specific and technical already so.

Yeah, OK, so Jason at the end of the day, it's all about whether or not the users like something, right. It's about their experience and their implicit desire to use something or to not use something. What are people with disabilities saying about overlaps?

Yeah, I think that's the main point, I think everything you've said all the way through is the experience to the end users the most important thing. Is what actually what people are trying to achieve when they spend money on accessibility is to build a user experience. Of into some really good hard evidence from different communities to say that widgets and overlays don't do a good job for them.

And I think one of the most important groups. And I explain why I think is an important group is the blind community in particular because actually a lot of these lawsuits are being brought by blind individuals. So if blind individuals have a very poor experience with widgets and overlays you're increasing your ability to be sued by that community.

So I think we have a slide from WebAIM, which do a range of surveys and actually. If you don't know WebAIM and you don't you haven't looked at the types of surveys they do they do some really, really good surveys around different types of assistive technology. I think we have some numbers that they did, they did a survey of their community asking them around what was their impression good, medium bad or terrible paraphrasing. Do you have that slide Sherrie, I don't know you pull it up or I can just use.

Jason I have it up on another monitor, if you need me to cite any of the stats for you.

Yeah, maybe you could just get the categories and then also the percentages just to give people an idea.

Sure, so if you picture it as a table with the number of respondents and the percentage. You have that overlays are very effective, somewhat effective, not very effective, at all effective. I'll just use the percentages because it doesn't matter the population that was sampled 3.3% of the respondents said that overlays were very effective. 27.8% said somewhat effective.

And so that means more than 2/3 said not very effective, which was 32% or not at all effective which was 37. And when you look only at the respondents who have disabilities that 2/3 becomes a 3/4 number. So 3/4 of people who have disabilities say, that a widget or overlay is either not very effective or not at all effective.

And I think it's a great ending point, when you talk about all the technology all the benefits, what the business case is, what the legal case is, what we really need to be considering and what most I believe most business owners want to make sure is that the core group of people that they may be discriminating against. Or maybe making it harder is those benefit from the investment that they make.

And clearly a widget and overlay is not benefiting a very significant core group. That essentially is the reason why anyone would want to make sure that their website usable, more users means more business. Great usability is good for brand. And in my humble opinion when you have a website, which is usable by the disability community, it's probably amazingly usable by the rest of the world.

So the idea of accessibility is saying that you do for a small group. Actually, what you do will improve the website for everybody. And essentially that's why we advocate that you should be improving the quality of the product for the disability community because it improves the quality of the product.

I'm a disability advocate at heart and that means that people are frequently surprised when they hear about my approach to accessibility. Which is to include it under an umbrella of what I call regulatory compliance. And in regulatory compliance I include privacy and security, in addition to accessibility. Are there privacy and security issues that are raised by the use of overlays Jeremy?

I mean, I think there are but I tend to be a skeptic about the beneficence of corporations in general. I don't think that they're acting on behalf of the welfare of their customers all the time. So from a technical standpoint I'm certain that I'm not qualified to speak to what those potential bugs are. But I know when we get called oftentimes it's by a chief compliance officer who says, listen we're worried about GDPR. We're worried about the California forgive me I forget the name of the acronym.

California Consumer Protection Act, CCPA.

Thank you, CCPA. So oftentimes accessibility gets lumped in with that. So I know that companies are often like you putting this under the basket or in the basket of regulatory compliance. But I know from having looked at in terms of service before from some of these companies that they broadly disclaim any sort of responsibility.

And the problem is when you're in a crisis, you've been sued you need to grab something fast you're going to grab the product quickly that is dangled in front of you, if it's inexpensive and seems to be fast. And so oftentimes these companies that are in distress are buying these products. They do not read the terms of service. And as I said these providers have disclaimed any sort of liability here if there are breaches of privacy.

So Jason you were talking earlier about the fact that there's a call out to a server that happens at states that are brought in. What I mean is that server gets hacked?

Well there's two things I would say especially when we talk to larger companies about the solutions that they might look at. The first thing is you've got to realize anything you put on your website you're responsible for. So if that code is discriminating against anybody, if it is creating and storing information in an inappropriate way against privacy you're responsible for it.

So you've got to sort of anything you put in your website you've got to be like, well who is the company that's actually building this, right. Where are they where are they based, how are they how are they maintained. A lot of these widget and overlay companies are actually based not in the United States, they're based in Israel. So their servers are not under the US requirements.

But as you described it what, if I say to a security person but a widget makes a call out to an unknown server and pulls data and puts it on your page. A security person will be well, we're not going to put that on our site. We have no control over what that server gives us on that page, what that server is, where that server is and we're responsible for absolutely everything on our site.

So the concept again, it's back down to smaller companies are making mistakes because they believe what's being said. They don't have the time to read the terms and conditions of these companies. And they're being told that everything is OK. And they don't have time to think about it, they've got we've got lots of other things to do like run a business, right.

And these widgets and overlays are taking advantage of that sort of lack of knowledge, lack of time, urgency around protecting themselves. But if you talk to any real security officer, any company they wouldn't put a small party third party code on the site that has no check on what it's downloaded and adding to the page.

OK, so just to wrap up. Back to the original title of this panel should I use an overlay? I'm going to ask each one of you and then thank you for your awesome participation in this. So Jeremy should people use overlay?

So I recognize the conflict here of two guys, who work for companies that compete with overlay and widget makers, right. So you're expecting me to say wholesale, no never use an overlay you just shouldn't do it. I actually think there is a use case for the overlay at times, I think that people who are aging into their disabilities for instance, those of us who have parents who are in their 70s or 80s, who may have low vision that has recently set in they are not lifelong users of assistive technology. They have not optimized their operating systems or their browsers to make font larger or more better color contrast, there is a case for that occasionally.

That said, broadly speaking though I don't believe that most companies are served well by investing in an overlay. Mostly because look it's not making the website any better as we discussed but also you're throwing good money after bad. You're going to still have to do something long term to fix your site. So why not take the money you were prepared to invest in an overlay and put that toward fixing the underlying code of your website. And creating a truly usable experience for all of your users.

Now I refer to that as stopping the bleeding, right. If you spend money in any form either on an overlay or on remediation but you continue to put out an accessible code, you can't be a little bit accessible. It's kind of like being a little bit pregnant. So but I do agree with you that there are use cases for special easily understandable tools for the older generation because they're not going to hack their CSS files. I mean I know like one person who's in their 80s who could hack a CSS file and it's my dad shocker. Jason should you use an overlay?

I mean I like Jeremy's point. And again your point being well if it's accessible and you add some additional features to it that could be useful. I think my input to companies that are looking at this are typically companies again with smaller websites, that have been built by somebody. Or will be better thing to do is put pressure on the people who are building your website to make sure it's accessible.

Include WCAG compliance clauses in your contracts with your website developers and your content maintainers. I think that that's an illusion that puts the owners on the people who actually are creating your code and updates. So we are out of time but I want to thank Jason Taylor and Jeremy Horelick for having this discussion with me today and enjoy the rest of the conference.

Transcript for Live Q&A

(Kevin McDaniel) I have to tell you, that was a really, really great presentation. The comments have just been lighting up a lot of for and against clearly a topic that causes a lot of points of view. Like, a lot of folks are expressing their opinions.

So I had three pages of questions that I've been writing as quickly as I can, even with the 40 minute presentation. So let's just kind of start light here, actually. You know, one of the questions that we had because of the expertize on this panel was in regards to this will come from a different direction in overlays at first. But to Jason, Jason first does. We had a question of directly WCAG. And initially, the question was about the impacts of overlays on compliance to work. But then as we were kind of going back and forth in the comments, one of the questions they had was what?

What is that? What are the differences in 3.0 and 2.1 and how does that impact overlays are what is deprecated from from 3.0? Do we lose any? Do you lose any of the predecessor's predecessors in the requirements and does that have any impact from you?

I mean from simplicity standpoint.

(Jason C. Taylor) Well, it sounds like two parts of a question, right, so I didn't in 3.0, essentially, it's a it's a progression from 2.1. Essentially, all the other criteria that you need to pass in 2.1 will be part of 3.0 and to get to a base level.

The difference in three point out is that they're they're creating what I call losses of a two step process. So one will be essentially a level that you achieve by following what you would follow today, which is 2.1 AA which are essentially coding techniques and coding requirements for certain success criteria.

And then there's a level of testing that you can do with actual users to give yourself a better, a better score in 3.0. They are trying to change the way scoring works today in 2.1 success criteria is fail or pass.

There's no sort of gray area to sort of build a score, but they want to build out a score to the to the essence of overlays and widgets you're going to. I mean, I think the industry in general, its customers, you know, corporations in general are going to hope that 3.0 includes some type of guidance around when you can add technology to solve a problem you can't that you don't want to show up in the code, for example, right? So there's there's there's a number of things overlays of doing what, but most of them add that technology between the website and the assistive user, which creates problems but can also create a solution.

But the question is whether that is know that doesn't sit today in anything to do with WCAG. They don't talk about it at an intermediary level. The technology that sits between the code and the and the user, they they talk about a universal approach, which is change all the code and then every type of browser, whether it's assistive assistive driven or not, can can to interface with that code, whether they change that in 3.0 and take some consideration for some of these overlays, it's not clear.

(Kevin) So do you do you anticipate that that any of the new changes to to work out that would give any type of provision for adding a third party line of code or a vendor line of code that would allow you to meet some of those requirements? Or do you do you believe that the spirit of the requirements still are, you know, you should in general provide some type of independent way to access your content an accessible way?

(Jason) To be clear, overlays in part. Have a line of code which calls an update to the code. So actually in part, they are updating the code to say AIG guidelines in certain situations. In other situations, they're applying a control panel to to handle things that are in CSC because they don't change CSIS.

So overlays technically have a does a couple of things going on with overlays, you know, an overlay manufacturer say we actually are updating the codes and they're right in certain situations, in other situations, they're not updating the code just to WCAG.

They're offering some type of control panel or technology to work around that. So WCAG really is about updating the code, which is part of what overlays can do and they typically don't advocate. It doesn't really have room to think about a technology layer that solves a problem, but without updating the code.

(Kevin) OK. And I think, you know, I wish that you both could see the comments here. You know, it's clearly there's a lot of a lot of a lot of knowledge here on this call, and I'm just I want to try to I want to try to get you through this narrative here because I think that, you know the question about 3.0 understanding the role overlays play in the spirit of the ADA. Let me give you an example. And the next question for you, Jeremy. I know that up until 2011 2012, the Department of Justice in large part did not even reference WCAG 2.0.

They referenced, you know, of course, the Department of Justice's website provision for state and local government for title three entities. And so, you know, when you're talking about use cases for users and when you're talking about this from an implementation standpoint, you know, when you're an ADA coordinator or an accessibility professional, you have a strategic toolkit, right?

You know, that's your your disability counsel, your relationship with your community, your mandate, your executive leadership and your support and any of the relationships you have in the organization. And then you have a tactical toolkit, which is your assistive technology.

WCAG, your evaluation methods and testing technology so you go to implement. And what I think people are still trying to figure out is where we're at in this process. Are we implementing the spirit of the ADA?

Are we implementing WCAG and do overlays have a role to play and based on the interpretation of the organization? You know, I think that's really important. And I just kind of from your experience, Jeremy, where do you think this is going from?

Implementation. And how should organizations be viewing what's a priority, is it the spirit of the ADA or is the standards and those sorry for the long question?

(Jeremy Horelick) It's OK. I would. I would invoke the spirit of Yogi Berra here and his old adage about never making predictions, especially about things that happen in the future.

Although I follow Mr. Berra's adage very closely, there's there's no way to tell what's what's going to happen, of course. And the pace of technology is so rapid to friends at places like Microsoft who are just extolling the virtues of AI and how fast it's proceeding.

So I suppose there's a scenario in which if you were to if you were to implement that developing technology in the context of an overlay, then conceivably, yes, you know, in five to ten years, we could be looking at a at a radically different landscape.

And maybe there would be more of a use case for these products. For now, however, to your question, I believe implementing the spirit of the ADA is what comes first, right? Everyone on this call already knows this, but it's about usability.

It's, you know, to Jason's point about scoring and the new in the new WCAG 3.0. It's really about the holistic can I use this as a as a user with disabilities? Can I get through the critical user journeys on this website?

And there are instances in which you could address all the all the criteria of WCAG and still have instances where those user journeys are not are not completely usable. So I think it is about honoring the spirit of the ADA over satisfying a particular set of criteria.

(Kevin) Hmm. Yeah, that's in it's in the comments, just continue to see this, I did not anticipate this, this presentation having such a lively debate.

(Jeremy) Who's who's asking? I'd like to know the nature of the questions. Is it the overlay companies who are asking the questions?

(Kevin) Oh no. I just think that, you know, you have, you know, we have a lot of folks here today, and I think that you have you have folks who who are, you know, they're loyal to the WCAG standards. And of course, we should be.

I'm not arguing that point. But you also have people that are on the ground who are in the implementation stage, and they're working to identify solutions that meet their their customers needs for, you know, 40/50 applications in some cases, and they're trying to solve unique problems.

So there's use cases.

(Jason) And I think, Andrew, can I just add to your comment? So. You know, we we I've been on a number of these types of presentations, and for me, the best feedback of all of it has always been someone who's blind.

Maybe they're from the National Federation of the Blind. We say, you know, the debate is like, should it be WCAG? Can you use over like that? Their response is we don't care as long as it works. We do not care fas long as it works.

So the web, you want to say the spirit of the ADA? It should be, but it works for the people that you're building it for. So you know, the biggest problem that we see with widgets or overlays today blind users.

Get into problems. Use using sites that rely on that technology because, again, it's intrusive, it's between the code and their assistive technology. If you go and test whatever solution you put in place with blind users, we have a couple of low vision users and everybody's super happy.

You should be totally confident in saying that's that's a that's a solution that I should be happy with. You know, as you know, as Jeremy arrived, you said you could be following lots to technical, get some of a screen read and they can't use it.

You know, when you go down to it, technically, no one cares how it's done. What they care about is that they can use the site. So the key for me is is to make sure that you've got access to people that you want to make sure can use the site and get them to try and use the site and tell, tell you whether it's good or not that that is the fundamental part of it. Accessibility can your designed group of people that you want to make sure you use the site can use the site? The reason why we talk about blind and screen readers is they're also the people who are suing the most.

So if they can't use the site, if they can find problems on the site, they'll list that in a lawsuit and now and they'll sue someone. That's why they're an important group. They're not the only group, and that's why they stand out as a group because they're the most active advocates and the most aggressive legal entities right now trying to enforce the idea.

(Kevin) Mm hmm. Yeah, that's and that's kind of, you know, I wanted to pick really good questions for you guys because I have so much respect for you both. Jason, you and I have talked several times and I know you both have so much knowledge on this and we have such limited time

But let me just give you an example to both you and Jeremy on what I mean by the divide here. You know, I'm opposed to questions about why you, you guys decide which one you want to take. one of the first is, you know, do overlays actually assist?

Some individuals do not have access to accessibility tools like at home and work, and we'll give you three. So that's one for. And then another one is, can we address the fact that overlays actually create barriers to people who use assistive technology and then the other one just to kind of back up?

There's another one that kind of plays a little role here. And I have probably 50 questions here, but one that I like to hear. This is overlays do play a role in the accommodation divide, where by not all users have access to assistive technology funds to support the tech they need when experiencing the web.

So it just seems like there's this push and pull here. Hmm. For and against.

(Jeremy) Yeah. Well, asked questions. one in three kind of resonate with with each other. You know, the question is, are there use cases where an overlay might provide some, some moderate level of accommodation?

Let's leave aside the language issue here. I don't think people who are who are disabled want to be accommodated. That's really important. Just the semantics of this don't accommodate us build equality into the experience, so we don't have to ask for an accommodation because that in itself is dehumanizing.

So let's make sure that message is out there. But yes, is my is my dad now in his late seventies at his disability? Sure. He doesn't have a permanent disability, but as his eyesight goes, it might be helpful for him to have screen magnification.

He's not a highly, you know, tech technical guy, so telling him to go into his browser settings isn't going to get a lot of traction. So could there be a case there? Yes. Would he then have to do that again on another website that uses the different widget?

Yeah. If he hit another site with a different technology, that's going to kind of speak to your second question. You know, that's an intrusive experience now of him having to change his settings or rather adapt to the different widget on each different website that he visits.

So I do think there is a use case there, for sure, but it's limited.

(Kevin) Mm-Hmm. Jason, I have a couple more questions, but we have time. I know both your time, so we're going to do you want to add anything to that or I have some other nudges.

(Jason) Just just the only obvious point, which is the vast majority of people that going to put in overlays on their site are trying to address the core problem, which is, does it does it make everybody able to access and use my site and will avoid me getting lawsuits?

That's why they put it on the site. They're not put it on the site in the vast majority of cases to for that sort of. What do you call it, fringe benefit? They are, you know, spending money to solve the first two and it doesn't solve the first two in most cases.

(Jeremy) Or if I could piggyback on that, or it's just a case of ignorance where they think they're buying the marketing behind these widgets, and this is something Jason I have spoken together on many times now, they just don't know, and they're not to be faulted for that because they're trying to run a business and they can't know everything. So when a company tells them, Hey, install this line of code and you're going to be fully accessible. Why wouldn't they believe them?

(Kevin) Mm hmm. Mm hmm. Wow, and I'll tell you, I this is it was so funny as you guys were presenting, it was just it just started racking up.

It was what an interesting debate. Real quick. I know Alycia's popping up. So that's my my. It's over. Quick question. This came up several times. Who do you guys view are the leaders of accessibility from an industry perspective at this point?

(Jeremy) Jason, you want to take that one?

(Jason) I mean, I default to the two largest companies I've built over 20 years, the biggest, the biggest client bases and revenue streams, the level axis. And so I would say that they've they've established themselves rightfully so as people that have, you know, as companies that have actually, you know, put themselves in the best possible position. I would say that a lot of that is based off of education, government, big big corporate sites, not E-commerce and where a lot of the ADA lawsuits are today. So there's other companies that do it are targeted in those sort of complicated retail world, which I don't think level access and DQ are.

But level access, if you are the biggest on the back of that government and educational business for the last 20 years. (Kevin) Well, thank you, guys, I got to like a third of the questions, but hopefully we'll have some more time at some point to go through them and for everybody else.

(Kevin) Please send me an email and I'll get the questions through these guys.

(Jeremy) Send them to us. I'm sure I speak for Jason when I say we're happy to take the time and and hash through these things. We know there's a big appetite for this conversation right now.

(Jason) Absolutely.

(Kevin) Thank you guys. So much for your time. You're the best.