But after we are done placing the gold medal in logic gymnastics around the necks of Domino’s legal team, one is left to wonder about the ultimate wisdom in Domino’s tactics. Spending their effort fighting this lawsuit, instead of respecting the spirit of the ADA, misses a clear opportunity to reach a broader audience and better serve their existing customer base. Let’s do a little catch-up: The Americans with Disabilities Act (ADA) is a civil rights law, enacted in 1990, that is meant to protect individuals with disabilities from discrimination in all areas of public life, with physical spaces as its focus. (You may recall that only Al Gore was using the internet in 1990.) This leaves a big gap in legal requirements for digital accommodations and, unfortunately, the Department of Justice has demurred, on multiple instances in the past decade, on establishing authoritative legal standards for web accessibility under this law. Specifically and most recently (September 2018), the DOJ stated “public accommodations have flexibility in how to comply with the ADA’s general requirements.” This lack of legal standard has led to a recent spate of lawsuits from disabled users finding themselves unable to use non-accessible websites, from companies big and small. DOJ’s public comments on flexibility and business owner discretion has only increased the litigation. In 2018, UsableNet tracked 2,285 website lawsuits, up 181 percent over the prior year. And the plaintiffs are winning – most recently (January 15, 2019) the Ninth Circuit Court of Appeals ruled the ADA indeed does apply to websites and mobile apps in the case against Domino’s Pizza that led to the Supreme Court case mentioned earlier. Let’s next consider the target audiences that web accessibility is intended to assist. The disabilities that affect digital product use fall into four categories:
Blindness or low vision 10.9 percent of US adults (26.9 million people!) report having trouble seeing, even when wearing glasses or contact lenses, or are unable to see at all. This includes a whopping 18.9 percent of those aged 75 and older. That demographic is only increasing in both number and digital adoption. Color-blindness Eight percent of men and 0.5 percent of women (10.1 million U.S. adults) experience one of the varieties of this condition. Motor impaired This can arise for numerous underlying conditions, such as arthritis, Parkinson’s, multiple sclerosis and muscular dystrophy (an estimated 38.2 million adults in the US suffer with some sort of physical functioning difficulty). Cognitively impaired This is a broad category, encompassing anything that causes a mental task to be more difficult for someone than for the general population. The causal clinical conditions range from dyslexia and ADD, to autism and Down Syndrome, but there are also simple functional cognitive disabilities such as low reading or math comprehension and memory loss that don’t necessarily stem from a clinical condition. The American Community Survey estimates this includes 5.1 percent of our U.S. population (16.7 million people).
These numbers, as big as they are, actually wildly undersell the target audience size, because they only cover permanent disabilities. Like your favorite web ad says, the real size may shock you! It turns out the audience actually encompasses everyone at one time or another, once temporary (think: arm cast, eye patch) and contextual (holding a baby, using a device in bright sunlight) impairments are acknowledged. These less thought of impairments lead to many brand marketers thinking accessibility needs don’t apply to their customer base, but the needs and benefits are universal. Case law precedents are on a trend favoring accessibility. The disabled audience is real and viable and accessible designs are generally easier and more intuitives experiences for everyone. In fact, this last point is one of the fundamental principles of Microsoft’s acclaimed inclusive design initiative. The case for spending the time and money to make your product accessible is clearer now than ever before. Now, we may seem like biased observers on this topic, but we’re not alone in this stance – even attorneys agree making your products accessible is a better way to spend your money than being named in a lawsuit. The question then quickly becomes, ‘how do we ensure our digital products are fully accessible?’ We could get deep into the weeds of best practices between HTML and native iOS and Android apps, but at strategic level, there are three key considerations:
1. Align on a target level of accessibility
Accessibility is a spectrum, not a binary proposition – make sure your business, tech and design teams agree on a clearly defined target goal within that spectrum. The Web Content Accessibility Guidelines (WCAG) published by the W3C are a great place to start. Their success criteria fall under three different levels of conformance (A, AA, AAA). Getting general agreement on exactly how accessible your product ultimately will be (remember, there’s no legal standard), goes a long way toward making sure all sides are comfortable with the approach, especially with regard to time and effort.
2. Account for accessibility early and often
Like the rest of good user experience design, accessibility efforts should start early and continue through the entire product lifecycle. That means UIs should not mature beyond rough sketches without considering accessibility. Attempting to retrofit “finished” designs will only increase complexity and effort, and force hard concessions for or against accessibility.
3. Expect a team effort
Accessibility expertise, per se, is not necessary for every member of your team, but as part of aligning on a target level of accessibility conformance, each discipline participating should have a familiarity with the concepts and goals, and each ultimately has a unique role in ensuring results. For example, smart implementation of accessibility on complex, modern transactional apps requires tech investment in researching best practices and validating concepts (i.e. prototyping). Your testing team will need to learn and be able to use assistive technologies. Everyone plays a part. It’s in everyone’s best interest to make digital products accessible. With a little commitment and planning, accessibility need not be overlooked any longer.
