Automation is the way of the future . . . or so we thought. Make no mistake, the technology at our fingertips is powerful. As we increasingly rely on it, we lose human interaction and that presents its own risks. Even in the completely digital world of web accessibility, the human touch is essential. Companies should consider utilizing vendors who perform manual (as well as automated) testing to ensure their websites comply with the American with Disabilities Act (ADA). Although courts are still wrestling with the applicability of the ADA to websites and whether a website even qualifies as a “place of public accommodation,” companies can avoid compliance headaches and potential litigation by using the human touch offered by some vendors.
Web accessibility testing often involves an automated process to test the coding of a website to ensure that it is perceivable, operable, understandable, and robust—each of which are hallmarks of accessibility. When compared to manual human testing, automated testing programs handle information much more quickly than a human can process it. However, an automated program works only as well as the person who creates it. Some estimate that automated testing alone captures only about 17-25% of accessibility errors and overlooks important website elements. For example, while automated testing can identify issues with missing alternative text for photos, only a human can assess whether the alternative text actually belongs to a specific image on the page. And, while automated captioning may conveniently allow a hearing-impaired individual to understand the spoken content of a video, the accuracy of the captioning may be compromised if one chooses to bypass human evaluation.
When used to the exclusion of human testing, automated programs leave companies exposed to legal risks, even in the absence of any regulatory guidance from the Justice Department. Based on agency statements in late 2018, it does not appear that any such guidance will be coming anytime soon. Currently, we have court opinions taking different approaches: the Third and Sixth circuits refusing to apply the ADA to non-physical elements; the Eleventh and Ninth circuits considering whether a non-physical element has a “nexus” or some connection to a physical element; and the First and Seventh circuits declaring that non-physical elements can indeed be places of public accommodation. As such, we await further decisions from the courts, particularly the Winn-Dixie v. Gil appeal currently pending before the Eleventh Circuit, to tell us whether a website is properly considered a “place of public accommodation.”
So, in the meantime, what is the solution, especially as plaintiffs continue to file accessibility claims? Web accessibility evaluations and testing should incorporate a human element. But, which humans can appropriately test a website’s accessibility? How do companies choose the best vendor? One forward-thinking approach would be to hire vendors that enlist individuals with disabilities to test the functional capability of accessibility fixes to a website. For instance, individuals who are blind or have low vision can identify elements of a website that cause site navigation difficulties. This testing advises web developers whether to add additional information for any web links or whether other navigation issues may exist. Persons with disabilities can provide specific and valuable feedback to web developers.
Automated testing for website accessibility is a good starting point, but as we know from other contexts, automation does not replace the need for the human touch. Consulting with a reputable vendor that performs manual testing –in addition to automated testing – can expose areas of risk and prepare companies to seize opportunities to reach the broadest audience possible. And, incorporating accessibility into each web development project may allow businesses to stay ahead of the litigation curve. See Why You Should Make Your Website ADA Accessible Now.
