Digital Accessibility lawsuits in 2023
I can’t count the number of times last year I vocalized “accessibility is not an option, it’s a requirement”.
I mentioned it at conferences, I discussed it in depth in my role as an admin at the Email Markup Consortium, as we reported that 99.9% of emails fail accessibility testing, I wrote about upcoming requirements from the EAA* that will enter into force next year, and I advised 20+ individual brands on accessibility improvements they should make to their campaigns.
Although I’m Canadian, I like to keep up with developments with the Americans with Disabilities Act (ADA) — which governs the right for those with disabilities to consume content that the rest of us able-bodied folk, do so without aid (assumingly for the most part).
UsableNet put together a great recap of digital accessibility lawsuits that were the subject to a claim in federal court under the ADA. What did they discover?
Ecommerce has more digital accessibility lawsuits than other industries
Yep, if you are an e-commerce brand that has consumers or subscribers in the US, you better take time to ensure your content is accessible. Both your website and your emails need to be up to par.
82% of lawsuits were directed at e-commerce businesses. And if we’re zooming out to review the last couple of years, UserNet reported that 82% of the top 500 eCommerce retailers have received lawsuits since 2018. So, if you have any plans to make it big as an eCommerce retailer and not implement accessibility, I guess you should prepare a good lawyer.
Food Service Industry comes in second
7% of digital accessibility lawsuits were directed at the food service industry. Yep, that’s a call to ensure your menu can be ingested by a screen reader!
Small business? Enterprise? It doesn’t matter.
Being a small “mom and pop” shop is irrelevant to whether or not you are at a greater risk of a lawsuit. Most businesses that received lawsuits have annual revenue under 25 million. However, 27% of the lawsuits came from those with less than that. It’s still not a small percentage that should be ignored.
I consistently hear from those I consult with that “they are just a small team and don’t think they’re at risk of any lawsuits” — well… that’s certainly not true!
so, what should email marketers be doing to ensure their emails are accessible?
Live text
When you can, use live text, stop using image-only emails. Stop baking text into imagery. Just write it out. Whether it be in your drag-and-drop email builder or you’re developing your emails with HTML.
Alt-text
Ensure your images have alt-text that accurately describes what your image is, or provides context for those that aren’t able to see or consume your image. Sarah Gallardo has great breakdowns of when and how best to use alt text that I recommend everyone take time to read.
Color-contrast
Ensure the color contrasts you use in your email campaigns pass WCAG AAA standards. You can read this as, your foreground and background colors should have a contrast that is clearly defined.
Conclusion
Yes, digital accessibility lawsuits in 2023 are not isolated to email — they are mainly made up of web experiences, but it is still important to take this as a call to ensure all digital touchpoints with your consumers can be ingested.
We may consider ourselves able-bodied now, but there’s no guarantee for how long that will last. Let’s advocate collectively for better standards!
PS: I am not a lawyer, so I cannot say or not say if you will indeed be sued…but is it that hard to be accessible? No.
*The European Accessibility Act (EAA) is an EU directive that establishes binding accessibility targets that must be met by many different types of products and services to strengthen the rights of people with disabilities to access goods and services, including ebooks, dedicated reading software, e-reading devices, and e-commerce. The EAA has been approved on 27 June 2019, should be implemented by EU Member States within 28 June 2022 and will enter in force from 28 June 2025.