Disability Discrimination Act and the Accessibility Journey of Your Website

Imagine the internet as a big playground where everyone should get to play. But sometimes, some people find it hard to join in because websites forget to include everyone. In Australia, there’s a cool set of rules called the Disability Discrimination Act 1992 (DDA) that makes sure websites are friendly to everyone, no matter what. This guide is like a treasure map, helping us understand the rules, why they’re super important, and what businesses can do to make their online spots awesome for all. So, let’s buckle up for a ride into the world of web accessibility where everyone gets to have a blast!

Getting real with the Law: Let’s talk about a real story. There’s this big Aussie business, and they had a bit of trouble because their website was tricky for people who can’t see well. One person felt left out and decided to speak up by using the DDA rules. It’s like saying, “Hey, everyone deserves a fair go online!” This story reminds us that following the rules isn’t just about avoiding trouble. It’s about being kind and making sure everyone, no matter what, can use websites without any problems.

While the main idea behind web accessibility laws like the DDA is to make sure websites are usable for everyone, there can be some interesting twists. These laws are like the referee in a game, making sure everyone follows the rules. Now, sometimes, people might try to use these rules for their own gain. For example, attorneys could step in, not just to make things fair, but also to gain something for themselves or their clients. It’s a bit like using the rulebook not just for justice but maybe to score a few points.

For example, according to information sourced from the Bureau of Internet Accessibility, a limited number of USA-based law firms bear the brunt of web accessibility lawsuits in the country. Surprisingly, more than 66% of all web accessibility lawsuits in 2022 were initiated by just five law firms. It’s crucial to highlight that this statistical concentration doesn’t cast doubt on the legitimacy of the lawsuits; instead, it underscores the pivotal role played by a handful of legal entities. If a business based in the USA were to receive an accessibility demand letter in 2023, there’s a high likelihood that it could be traced back to one of these five prominent law firms:

• Stein Saks, PLLC – 372 lawsuits
• Mars Khaimov Law, PLLC – 360 lawsuits.
• Mizrahi Kroub LLP – 345 lawsuits filed.
• Manning Law, APC – 260 lawsuits.
• Pacific Trial Attorneys, APC – 259 lawsuits.

Now, here’s where it gets very tricky. Some less privileged individuals might see these laws as a way to gain benefits which is not always the case. If a website isn’t following the rules, they might file a complaint, hoping for a settlement. It’s not always about making things right but sometimes about what they can get. It’s like turning the rules into a game of chance, hoping to win something in return. Competitors, too, might want to create a storm. They could use these laws as a tool to stir up trouble for their rivals. Imagine a soccer match where one team tells the referee the other side isn’t playing fair. In the digital world, it’s a similar tactic. By pointing out flaws in a competitor’s website, they might create chaos and grab a slice of the market share. So, while these laws are meant to level the playing field, sometimes they can become a game in themselves, with unexpected players trying to score in different ways.

When it comes to web accessibility lawsuits, the surface issue might appear to be about pointing out accessibility errors, but underneath lies a high-stakes game with significant compensation at stake – at least, that’s our perspective. Opinions are subjective and generally not subject to legal dispute, as the legal system prioritises facts and evidence over personal viewpoints. So, apologies, you can’t dispute our opinion. Nevertheless, in numerous cases, compensation sums have soared into the millions, underscoring the gravity of these legal battles. A glimpse into past instances in both the USA and Australia provides insight into the magnitude of this game.

In the USA, the Americans with disabilities has played a pivotal role in web accessibility lawsuits. A notable example involves the retail giant Target, which, in 2008, faced a class-action lawsuit for its website’s inaccessibility to individuals with visual impairments. The outcome? A settlement of nearly $6 million. This case established a precedent, heightening businesses’ awareness of the repercussions of neglecting web accessibility.

Australia, too, has seen significant legal actions, with several organisations having to compensate affected individuals. While not delving into specific details, these incidents emphasise the potential financial implications of non-compliance. These examples underscore that web accessibility lawsuits go beyond fixing a few website issues or making websites accessible. While the motives of regulating bodies or governments may be limited to improving accessibility and promoting independence and equal opportunity, there could be people who explore ways of benefiting from it with strategic manoeuvres and substantial compensation as the endgame. Businesses, regardless of size, must be cautious players in this arena, ensuring not only adherence to accessibility standards but also a keen understanding of the financial stakes involved. It’s a lesson from the past that resonates loudly in the current landscape of web accessibility litigation.

Well, motives such as financial gain are not the only players here. Imagine you’ve invited a diverse group of friends for a delightful tea gathering. You’ve prepared an assortment of treats—chewy candy, jerky, and chocolate-coated nuts. However, in the midst of the warm invitations, you unintentionally overlooked the dietary needs of one friend who has no teeth. As the friend struggles to enjoy the offerings, frustration sets in. The misalignment between what’s provided and what’s needed becomes palpable.

Now, transpose this scenario to the digital realm. In our narrative of web accessibility, individuals with diverse abilities are akin to your friends with various preferences. The online environment is the tea gathering, and websites are the treats offered. Just as the friend with no teeth encountered frustration due to the mismatched treats, individuals with disabilities encounter frustration when websites aren’t designed with accessibility in mind.

In the digital landscape, frustrations arise not only from personal emotions like anger or jealousy but from encountering barriers that limit equal access. Our friends with disabilities, much like the friend without teeth, face challenges in navigating and perceiving digital content. It’s not about personal preferences; it’s about creating an inclusive space where everyone can participate fully. If the host had added a touch of yogurt, ice cream, bananas, and custard to the tea party, akin to the toothless delight it brings to my grandfather, the whole issue might have been non-existent.

In the unfolding story, these frustrations become the driving force behind legal actions. Lawsuits are not mere expressions of personal emotions but strategic manoeuvres to rectify systemic issues. When the law permits and expectations are not met, some tend to strike and knock down the players. Yes, individuals with disabilities are advocating for change, seeking to eliminate digital exclusion, and ensure that online spaces are as accessible to them as they are to others. Yet, it’s a narrative of inclusion, equality, and the collective journey towards a more accessible digital world, though there may be many other motives behind the scene.

Well, here’s a personal experience. A USA-based client recently approached us with an audit report highlighting a list of accessibility issues on her website. Her business is a small e-commerce site that sells no more than 10 products—let’s say, homemade jam bottles. Surprisingly, a legal case was filed by a blind individual who couldn’t make a purchase due to some accessibility issues on the site. Technically, the client could pass the accessibility responsibility to the e-commerce platform she’s using, but the intricacies of these cases often surpass the knowledge of business owners and their attorneys. They are not tech-savvy and rely on audit reports.

The intriguing question arises: why sue a small business owner who is selling homemade jam bottles? Is this the work of a competitor aiming to disrupt the business, or is it orchestrated by an attorney steering the case? This example invites contemplation on the motives behind such lawsuits, particularly when targeting seemingly modest enterprises. It suggests that competitors or legal entities may strategically use web accessibility lawsuits as a tool, creating turbulence for businesses, big or small, in this ever-evolving digital landscape. The motivations behind these legal manoeuvres extend beyond mere accessibility concerns, painting a more complex picture of the dynamics at play in the realm of web accessibility litigation.

Let’s get into some details. The Australian Disability Discrimination Act 1992 (DDA) does not explicitly state which specific organisations or bodies need to comply with the Act. Instead, the DDA aims to eliminate discrimination on the grounds of disability in various areas of public life, including access to goods, services, facilities, and more.

In general, the Act applies to a broad range of entities, both in the public and private sectors. This includes businesses, educational institutions, government agencies, and organisations providing goods or services to the public. While the Australian Disability Discrimination Act 1992 (DDA) does not explicitly specify the organisations or bodies mandated to comply with its provisions, its main goal is clear: to eliminate discrimination on the basis of disability in various aspects of public life. The responsibility to uphold accessibility standards primarily falls under the jurisdiction of the Digital Transformation Agency (DTA), an executive agency under the Department of the Prime Minister and Cabinet. The DTA is instrumental in formulating and advocating for digital and ICT standards, with a specific emphasis on ensuring accessibility across government agencies. In a broad context, the DDA applies to a diverse array of entities within both the public and private sectors. 

If you wish to confirm that websites are required to be designed for accessibility, allowing individuals with disabilities access to content and features, kindly refer to the ‘Access for All‘ webpage on the Australian Human Rights Commission’s site. The dedicated ‘Access online’ section on this page offers comprehensive information for your reference.

NGOs, government subsidiaries, certification bodies, employment agencies, businesses dealing in essential goods and services, and those in the education sector (ranging from academic institutions to early childhood and disability education providers) should pay close attention to what you are about to read. Grab a coffee and get ready to put your brain to work.

Let’s explore how businesses can make their online spaces truly awesome for everyone. Along the way, we’ll delve into the basic methods for minimising legal implications in the most cost-effective manner.

Before going into specifics, it’s important to note that government agencies, both at the federal and state levels, have specific requirements for meeting accessibility standards. The Australian Government Digital Transformation Agency mandates that all government agencies must adhere to the Web Content Accessibility Guidelines (WCAG) Level 2.1, as outlined on DTA website. Similarly, the Centre for Accessibility Australia emphasises that mainstream organisations are expected to meet the Web Content Accessibility Guidelines at Level AA.

While each state in Australia has its own set of guidelines for ensuring digital material accessibility, it’s worth highlighting that, as of my last knowledge update, there isn’t a centralised, government-manufactured, freely accessible tool for web accessibility testing specific to Australian regulations. This raises the crucial question: if rules are set, where is the tool for Australian businesses to test their compliance?

Despite this gap, it’s noteworthy that the Australian government actively promotes and supports web accessibility initiatives, offering resources and guidelines to assist organisations in achieving compliance with international standards. The Web Content Accessibility Guidelines (WCAG) by the World Wide Web Consortium (W3C) serve as the international benchmark, with the Digital Transformation Agency (DTA) in Australia incorporating them into the Digital Service Standard, requiring government services to meet WCAG 2.1 AA standards.

However, it’s a lamentable reality that none of the six Jurisdictions in Australia has deployed a freely accessible system for detecting and reporting compliance with the guidelines they’ve set forth or adopted. Instead, most Jurisdictions recommend external or privately-owned toolkits for testing accessibility. Take, for instance, the NSW government’s recommendation of Google Lighthouse as one of the options for accessibility testing, as outlined on the “Accessibility Testing” webpage of the official NSW Government website.

Isn’t it fascinating to note that Google’s Lighthouse accessibility scoring system holds significant weight in the digital landscape?

According to Google, Lighthouse’s scoring system is based on axe user impact assessments, which, in turn, rely on WCAG 2 rules.

Now, considering that the government endorses Lighthouse as one of the options of the first intuitive to become accessibility compliant, and Google endorses that the lighthouse is based on axe user impact assessments, and the axe user impact assessments rely on WCAG 2 rules, it seems that complying with Google Accessibility test is a cost-effective initiative to prioritise accessibility as your first step towards compliance. While passing Google Page Insights accessibility may not cover all the requirements of WCAG 2.1 Level AA, it can certainly be a crucial starting point.

Passing Google Page Insights accessibility test and achieving the coveted green mark might be your best and easiest option to steer clear of potential troubles. The test, although not exhaustive, aligns with many WCAG 2.1 Level AA requirements. According to the Bureau of Internet Accessibility (USA), Lighthouse compares web content against WCAG, covering numerous Level AA requirements and providing users with a fairly accurate score, a weighted average of all tests Lighthouse performs.

Simply put, even if you don’t meet all the WCAG rules, the important thing is that you’ve started trying to follow them as best as you can. This is good because dealing with web accessibility can be complicated – there are money issues, legal worries, and other challenges. By being fair and doing your best, you’re less likely to get into serious trouble with lawsuits. This isn’t just about following the law; it’s also about doing the right thing. It aligns not only with legal expectations but also ethical principles.

Many businesses, especially smaller ones, may have limited resources or funds for web accessibility compliance. The cost of a private WCAG 2.1 accessibility audit and subsequent implementation can be significant. By doing what is needed within your financial means and knowledge, you proactively mitigate risks. It’s a strategy that aligns with legal expectations, and, when approached fairly, keeps you out of trouble.

For example, A small manufacturing business is operating with limited financial resources. Despite these constraints, they actively engage in safety training for employees, implement safety protocols, and regularly update their machinery to meet industry standards. Despite these efforts, a minor workplace incident occurs. In such a case, the business may argue that they’ve taken reasonable steps within their financial means to ensure a safe working environment. The court might consider their proactive safety measures, potentially resulting in a more lenient judgment.

This example illustrates the general legal principle that businesses demonstrating a commitment to compliance often fare well. Complying with Google Accessibility standards is a similar initiative that puts you on the safe path.

Web accessibility is an evolving field, and there’s always room for improvement. but completely neglecting the needs of the less privileged can lead to trouble.

Now, let’s bring this into perspective. Whether you are a legal practitioner with a small office and a handful of employees, a private disability support centre, an early childhood education centre, an NGO, or a dental practice, you understand the struggle of making a living and the importance of having a website. In most cases, you don’t have substantial funds to invest in WCAG 2.1 compliance, and yet, not having a website is not an option.

The government and regulatory bodies offer excellent recommendations on digital accessibility compliance, but the practicality of implementation with limited funds and resources is challenging. In the midst of these challenges, trouble might be lurking if you don’t take any action.

Imagine taking the reasonable, moral, and just measure of making your website pass the Google Accessibility test as a first step. Aligning with credible sources, Google Lighthouse is rooted in the Web Content Accessibility Guidelines (WCAG), covering many WCAG Level AA requirements. Adding a commitment clause on your website, just like the one written below, is a positive move.

“We are dedicated to ensuring that our website is accessible to everyone, regardless of their abilities or disabilities. Recognising the importance of inclusivity, we have taken deliberate steps to enhance the accessibility of our site by aligning with the Google Lighthouse Accessibility scoring system, rooted in the Web Content Accessibility Guidelines (WCAG).

If you are a person with disabilities attempting to access our website, rest assured that we have made sincere efforts to meet your expectations. We acknowledge that accessibility is an ongoing journey, and we are committed to continuous improvement.

In the rare event that you encounter any difficulties accessing a page or element of our website or find it challenging to use, we are here to assist you. Your feedback is invaluable to us. Please use the contact form provided to share any difficulties you may face, and we will promptly address and rectify them to the best of our abilities.

Thank you for partnering with us on this shared endeavour to make the web accessible to everyone. Your experience matters, and we are committed to making our online space welcoming and user-friendly for all.”

But here’s the reality check. This alone may not be sufficient to keep you out of trouble. The key is commitment to accessibility in this evolving digital landscape. When someone contacts you with an issue, you need to act swiftly—acknowledge the complaint, respond, rectify, and fix it.

It’s important to note that while the Google Lighthouse accessibility audit fixes most issues, some, like inaccurate image descriptions (ALT tags) or illogical content structures, might be overlooked. So, when you take this step, consider it a commitment, not just a one-time task.

Now, ponder this: if you’ve committed to improve accessibility and included that clause, is it ethical or morally justifiable for someone to immediately sue you if they find an issue or two? Unlikely. Legal action might only be warranted if you fail to uphold your commitment and ignore reported issues.

Think about it from the court’s perspective. How would they treat a lawsuit filed against you without any prior attempt to contact and resolve issues through communication? Courts might view immediate legal action unfavourably.

Your proactive measures are likely to be viewed positively by the courts, reducing the risk of lawsuits. This approach is fair; you are contributing to making the internet accessible, even though it may not bring you direct financial benefits. It’s a significant step towards creating an inclusive digital landscape.

By taking this approach, you empower the disabled community to voice their concerns and assist businesses, including yours, in making the digital landscape accessible to everyone. This collaborative effort reduces the likelihood of court battles, allowing all parties to participate in the shared adventure of making the internet accessible.

In essence, this approach minimises opportunities for individuals to exploit digital accessibility issues for financial gain. You don’t need to be a lawyer to grasp this; you just need to use your common sense.

While we may not be WCAG auditors or legal experts, we’re well-informed and use technical language to uphold high standards. If you’re working towards meeting Google Lighthouse web accessibility standards, we’re here to assist. Fill out the form below to get a quote for a website redesign focused on Google Core Web Vital compliance.

It’s important to note that we don’t promise a WCAG 2.1 Level AA compliant website redesign. Instead, we commit to creating a website that complies with Google Core Web Vital accessibility standards, covering most WCAG 2.1 Level AA compliance rules at a fraction of the cost you might pay for a full WCAG 2.1 Level AA compliance website. Think of it as a $10,000 service that covers 95% of what you’d get from a $50,000 service. If your focus is solely on meeting Google Core Web Vital accessibility standards without a significant redesign, the associated cost may reduce significantly. Feel free to request a quote for Google Lighthouse accessibility compliance using the form below. The quotes are provided at no cost.

For those who recently used our website redesign service and achieved a green light for accessibility on Google Page Insights, congratulations! Test the accessibility scores of other websites on Google Page Insights, like your local council or favourite shopping site. You may be surprised that many fall short of the standard you’ve attained. The drama is just beginning, and more thrilling scenes are yet to unfold.

If you’ve secured the green light on Google Page Insights and want to go further, follow the guidelines provided by the Australian government digital transformation agency and your state government. If this article made your eyeballs pop like in a Mickey Mouse cartoon, we apologise for that surprise. If it helped you and provided insight, we appreciate your comment and encourage you to share it on social media. You can find the share button at the bottom of this article. If you know someone who would benefit from this article, please share it.

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Wishing you all a successful and inclusive 2024