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Your Shopify Store is at Risk to be Sued for Web Accessibility—Now What!?

Nov 06 '18

We feel a little like doomsday preachers when we talk about this subject, but until we stop getting clients with website accessibility issues, we’re going to continue to try to help those who want to avoid a headache down the road and make the web a better place for all.

Looks like we’re going to keep preaching for a while 👇

Graph of web accessibility lawsuit comparison for the first 6 months of the year. From 814 lawsuits in 2017 to 1053 lawsuits in 2018

Source: https://www.adatitleiii.com/2018/07/website-access-and-other-ada-title-…

 

Read this guide if you are currently in the process of being sued for web accessibility OR you are at risk. (And you probably are).

  1. How to identify if your Shopify store is at risk

  2. Which web accessibility rules are you probably breaking?

  3. How much can you expect to pay to make your Shopify site compliant?

  4. You’re being sued—now what?

 

How to identify if your Shopify store is at risk

If you haven’t been sued over web accessibility, you're at high risk if:

  1. You are doing more than one million dollars in annual gross merchandise value (GMV) on your Shopify store.

  2. You sell primarily in the United States.

  3. You advertise in prominent publications like The New York Times Sunday Style section or Vogue.

And that’s all it takes. Web accessibility compliance is not a major undertaking for a mid-market digital brand, but you do have to do it deliberately. If you don’t, and you are large enough to get noticed, it is just a matter of time before you get sued.

What web accessibility rules might you be breaking?

Web accessibility lawsuits allege that a particular website is not usable by people with disabilities, such as vision issues. The web accessibility standard is called Web Content Accessibility Guidelines, or WCAG 2.0 for short.

Web accessibility revolves around three main areas of impairments:

  1. Vision. People are blind or have a vision issue which makes it difficult to see a screen.

  2. Hearing. Just like vision, this goes beyond people who are completely deaf. It also extends to people who have a hearing impairment that makes it difficult to listen to the audio.

  3. Physical. For those who need to use a keyboard to navigate rather than a mouse.

Most of the litigation today is built on two decades of case law that has grown from the Americans with Disabilities Act (ADA).

Here are a few key areas where your Shopify site is likely breaking the rules and thus putting you at risk of litigation:

  1. You use color as the only means to convey a functionality on the site, without a backup visual like text. This means colorblind people will struggle.

  2. You don’t have primary keyboard navigation set up for your main navigation elements, which is necessary for blind users to use your site.

  3. You use videos that lack closed captions or don’t have transcripts linked.

  4. You don’t have alt and title information on images, so blind users are unable to understand what an image is.

  5. You have mistakes in your HTML code that make it harder for screen readers (the software that reads websites to blind users) to interpret and read your site.

We know that when you are balancing so many tasks, it’s difficult to fit in “extra” work like this. But it’s not t “extra,” it’s foundational to creating a site experience that is equally valuable for anyone, and it’s also your responsibility as a good corporate citizen.

Having to make an accessible site is not a punishment—it’s a duty and an opportunity. Don’t forget that if your site is easier for those with disabilities to use it is also easier for them to buy from you. And often web accessibility makes it easier for everyone to use the site and improves engagement.

How much can you expect to invest to make your Shopify site compliant?

There are three main costs related to achieving compliance and maintaining its:

  1. An audit, to assess what the current compliance issues are and what level of effort is necessary to fix them. (This is optional if you decide to run it yourself, but you need to make sure the team member leading the audit is comfortable with the various rules and has proper time to go through each element of compliance—not just the one you are being targeted for in a lawsuit.)

  2. One time fixes, to address all of the findings in the audit.

  3. Modest changes to your editorial and design processes to ensure you stay compliant.

The costs of each component will vary depending on the overall complexity of your site. If you have more UI and UX elements to check it will take more time, and with more elements there are likely ) more issues to address. And more site elements often correlates to more SKUs and site content, so the total cost of the process changes necessary for marketing and merchandising teams is higher.

Shopify provides an excellent foundation for web accessibility compliance. Because the backend is managed for you and the platform is standards-driven, web engineering work is limited to the front end layer, and thus takes less time.

Is it worth having an agency help you out?

You can expect an audit should for a mid-market site on Shopify to cost you anywhere from $3,000 to $10,000. Depending on the quality of your existing theme and the number of issues, you can expect to pay anywhere from $5,000 - $25,000 (at agency rates) to address them.

The real advantage of hiring an agency is speed. Even though you might have a fair amount of time to become compliant, you need a few months under your belt to practice maintaining your compliance process.

Lastly, the cost of expanding your editorial and merchandising processes for web accessibility compliance should be modest. Most of the processes will need to change—for example, making sure an image has title and alt text—and it’s important to make designers aware of web accessibility guidelines—but those aren’t complex fixes. And because the foundation of good web accessibility is web standards-driven development, you can achieve a good amount of compliance simply by following best practices.

You’re being sued—now what?

It is crucial to not panic. Lawsuits take time to resolve themselves, they most likely won’t end as badly as you think, and patience is the best path to better outcomes. So do not panic, do not respond until you’ve had time to think first strategically.

The five eight stages of getting sued are:

  1. You get sued.

  2. You get pissed.

  3. You talk to your attorney.

  4. You calculate the cost of compliance versus the cost of fighting the lawsuit.

  5. You accept you have to settle and won’t fight after all.

  6. You finalize a settlement with your attorney.

  7. You settle and sign some paperwork.

  8. You have a set period of time (months, maybe a year) to get your site compliant.

Most people choose to settle. Litigation is expensive—in time and dollars. Managing a business is the imperfect art of continuously trying to get less terrible at assessing the cost, value, and return of things, like the cost of underutilized staff, the real value of a potential hire, the return in dollars of a proposed marketing campaign, to name just a few.

Dealing with a lawsuit is no different. You need to compare the costs of settling (immediate dollars, any long-term consequences that settling opens you up to) to fighting (attorney's fees, your time and attention, the risk of losing, the chance of winning, preventing future costs by showing a willingness to fight).

Seriously though—should you put on your boxing gloves?

Most likely the answer is no. To fight any serious litigation you are looking at a minimum of $50,000, and probably much more.

In the case of Winn Dixie, the subject of first website accessibility trial in Florida, the company lost and had to pay the plaintiff’s attorney fees, plus their own, and make their site compliant within three years, which had an estimated cost of $250,000. The court ruled that “the $250,000 cost of making the website accessible to be an undue burden. The court said this cost ‘pales in comparison to the $2 million Winn-Dixie spent in 2015 to open the website and the $7 million it spent in 2016 to remake the website for the Plenti program.’”

And don’t forget, the other side is doing the same math. They know to fight you in court will also cost them a bundle, so unless they are feeling especially litigious, they will take a guaranteed smaller amount than an unknown larger amount. Why? Because our brains are hardwired to be more frightened of a certain loss (the dollars spent fighting) much more than excited about a gain of the same intrinsic value (possible payout at trial).

You’re likely best served by following these three steps:

Step 1: Talk to the experts.

First, and most important: Talk to your attorney. We are not a law firm and do not have legal expertise. And neither do you. Hopefully, you have an attorney (if you don’t, get one—ask a small business owner for a referral). Reach out to them immediately. They will help you get a better understanding of your position.

You know that old joke that you never ask general counsel for permission because all they do is say no? Well, as a business leader, working with attorneys can be a little maddening because they don’t deal in certainties. And they often hate estimating the likelihood of outcomes. They really are just an (important) data point and trusted source from which you can draw information to use more broadly in your decision.

Your lawyer will be crucial in these situations. Work closely with sound counsel.

You also need a strong digital expert who understands the costs of compliance, can assess your issues, and provide you with the analysis you need to make a fully-informed decision. This expert could be someone on your team or an outside web agency.

Step 2: Assess your liability.

Before you can formulate any legal or settlement strategy, you need to know all of your legal, business, and technology costs. Most important is knowing the cost of becoming compliant. The first step is doing a web accessibility audit. For a modest store, an audit isn’t a massive effort.

A good audit will look at the overall structure of your HTML, CSS, and JavaScript of your theme, review how images and video are used in your site, review your site UI and UX for important elements like contrast and color usage, explore your editorial and merchandise, and simulate using your site with the real tools disabled users rely on.

The audit should include detail on each compliance issue, remediation guidance, and the level of engineering effort necessary to address the issue. An audit should take weeks, not months, for a partner to complete.

Once you have the cost of compliance, you can properly assess the business risk of fighting the issue vs. settlement and compliance.

Step 3: Create a process to maintain compliance.

Most of what you will need to do to make your Shopify site compliant involves engineering the theme layer in Shopify. However, some components of compliance require you to pay continual editorial attention to the guidelines. For example, any image uploaded by your merchandise team needs a thoughtfully written title and alternative text. You also need to ensure that future engineering work done on your site will be compliant so make sure that future contracts you sign with partners mention that the work will be compliant.

In order to develop a strong process, consider these guidelines.

  1. Have a site manager who understands web accessibility. They should consult a resource like WEBAim’s training resources, a good primer on why web accessibility is important and how to get started.

  2. Have each individual team member understand their role in web accessibility.

    1. Designers
    2. SEO
    3. Developers
    4. Ecommerce
  3. Develop a simple, comprehensive checklist. This should be usable by anyone on your team who will own new pages on your site.

Here are some other great resources from Shopify that we have found valuable:

  1. Developing Shopify Themes with Accessibility in Mind

  2. Inclusive Design: 12 Ways to Design for Everyone

  3. What is Progressive Enhancement and why should you care?

We get that making your website more accessible requires more effort and can be confusing, but we’re fans of where this is going. The web should be a place for all and we should do what we can to make it that way.

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