My name is Kris Rivenburgh. I’m an attorney and the author of The ADA Book. I’m also the founder of Accessible.org.
So that I can efficiently provide a transcript and closed captions, I will read from the transcript itself.
Before I start, note that when I refer to products, I am primarily referring to what are called overlays. Generally, overlays are clickable menus with named accessibility options that are sold under the pretense they make your website accessible. I have lumped a number of terms including software, app, plugin, widget, etc. under the overlay umbrella to dispel the notion that there is any product that can make your website accessible.
There is no product you can buy to make your website “ADA compliant”.
I put ADA compliance in quotes because we don’t have a definitive standard that tells us exactly when we’ve made a website (or any other digital asset) ADA compliant.
The legal standard for ADA Title III compliance is meaningful access.
And, in the Department of Justice’s Web Accessibility Guidance post from March 2022, the DOJ wrote:
“The Department of Justice does not have a regulation setting out detailed standards, but the Department’s longstanding interpretation of the general nondiscrimination and effective communication provisions applies to web accessibility.”
So how do I know that you can’t buy any software, app, plugin, widget, overlay, etc. for ADA compliance?
DOJ Guidance
Well for one, there is no mention of any product in the DOJ guidance. Instead, the DOJ wrote:
“Existing technical standards provide helpful guidance concerning how to ensure accessibility of website features. These include the Web Content Accessibility Guidelines (WCAG) and the Section 508 Standards, which the federal government uses for its own websites. Check out the resources section for more references.”
And the resources section makes no mention of any software, widget, etc. that can make a website ADA compliant.
And this release from the DOJ wasn’t from 2010, again, it was from 2022. Overlays have claimed they can make websites WCAG conformant and ADA compliant for years.
Don’t you think the DOJ would have at least made mention of a magical product that can solve all of your accessibility problems if it existed?
Logically, think about it for a second, if such a product really existed, you wouldn’t be watching this video right now. ADA compliance for websites would be over and done with. This channel wouldn’t exist. I would have never written a book on ADA compliance for digital assets.
If you take a moment and think about it for a second, the idea of instant accessibility “compliance” is completely asinine.
Vendors Admit It
Secondly, just go on the vendor websites. They basically admit they can’t offer WCAG conformance or ADA compliance.
Some now even have their own manual accessibility audit services.
Wait, what happened to this all-encompassing “solution” that was supposed to automatically solve everything?
Also, read through their actual terms and conditions. When you read through the legal fine print, you’ll see they quickly back off all of the outrageous claims and insinuations that headline whatever widget or software they’re selling.
User Testimonials
Visit OverlayFactSheet.com. Accessibility expert Karl Groves put together this tremendous resource that includes testimonials from dozens of users with disabilities who have had horrible experiences with overlays.
This means the meaningful access standard is not being met and can be demonstrably proven.
False Claims
Karl Groves has put together another superb resource at OverlayFalseClaims.com where he proves claims by overlay vendors are lies in a step-by-step manner.
In other words, overlays can’t do what they’re promising.
And I’ll provide links to all of Karl’s resources below this video – the description on YouTube.
Separate and Unequal
Under Sec. 12182(b)(1)(A), unequal and separate benefits are prohibited.
This generally means that you can’t make your offerings unequal to or separate from your primary offering. Let’s go through relevant the language directly from Title III of the Americans with Disabilities Act.
(ii) Participation in unequal benefit
It shall be discriminatory to afford an individual or class of individuals, on the basis of a disability or disabilities… the opportunity to participate in or benefit from a good, service, facility, privilege, advantage, or accommodation that is not equal to that afforded to other individuals.
(iii) Separate benefit
It shall be discriminatory to provide an individual or class of individuals, on the basis of a disability or disabilities… with a good, service, facility, privilege, advantage, or accommodation that is different or separate from that provided to other individuals, unless such action is necessary to provide… a good, service, facility, privilege, advantage, or accommodation, or other opportunity that is as effective as that provided to others.
Overlays repeatedly create a separate and unequal experience for website visitors. Here’s a list of potential reasons why:
- Overlays may not always load for any number of reasons
- Overlays themselves may be inaccessible and create accessibility issues
- Users have to find and locate the accessibility menu
- Users have to decide whether or not they want to activate accessibility options
- Users may be distracted or frustrated by the options
- Users have to undergo a learning curve to figure out what the overlay is, what options it has, and what any privacy implications there may be
- Users have to figure out what accessibility options they want to activate
- Users have to decide if potential conflicts with their assistive technology are worth activating the overlay for
- Users have to go proceed in beta mode throughout the website, guessing and checking and testing their way through the experience
- Users have to decide between keeping the overlay activated vs. deactivating it
Contrast this experience vs. one where the website is WCAG conformant and any user can browse and interact with the website as they wish.
And, as you may have guessed, overlays don’t work for accessibility. Karl Groves has another fantastic website that explains why overlays don’t technically work.
This website is OverlaysDontWork.com.
Lawsuits
Moreover, websites that use overlays and other products for accessibility have nevertheless been involved in litigation.
This is to say that overlays do not stop demand letters being sent or complaints from being sent.
So this defeats the practical purpose of preventing lawsuits that many organizations buy overlays for. I’ve talked to numerous people who think overlays are some kind of stopgap or temporary solution.
They’re not.
They never have been.
Inherent Accessibility
Ultimately, this all comes down to the inability of any product – and this includes products that claim they use Artificial Intelligence or AI – to make the code, design, content, and/or media inherently accessible.
To accomplish this, someone has to manually make the effort.
There is no product that can make a digital asset inherently accessible.
If you would like help with an audit or remediation, you can find out more about accessibility services at Accessible.org.
Furthermore, I highly recommend you read The ADA Book. The ADA Book is quick and to the point and helps everyone understand the legal landscape and the different elements in play when making a website or other digital asset accessible.
