In 2018 and 2019, there has been a flood of ADA-based web and app accessibility lawsuits and Demand Letters. Now, with the US Supreme Court's denial of Domino's petition the rise of ADA Web and app cases are likely to continue.
With the majority of companies hiring digital agencies to build their websites and apps, a robust ADA accessibility clause in contracts moves the responsibility of compliance from the company that own the site or app to the company building it. In the coming months, adding Accessibility clauses to new contracts and RFPs is likely to become popular for companies looking to prevent ADA-based lawsuits.
To help craft effective accessibility procurement clauses, we've taken lessons from our 20 years of experience in Web and App Accessibility and outlined 5 steps to bring accessibility considerations to the procurement process.
1. Engage Legal
The first step is to engage legal counsel, either in-house or external. Legal counsel should own these new provisions. Counsel may need input from a company's technical team to establish context in relation to the contracts but, the core of all RFP requirements and contacts should fall within the remit of your legal team.
2. Select an Accessibility StandardThe prevailing standard in Accessibility is the W3C’s Web Content Accessibility Guidelines (WCAG) that has three levels (A, AA, AAA). The majority of accessibly laws and cases reference the WCAG 2.0 AA standard. However the latest version is WCAG 2.1 and there are already efforts to introduce 2.2 and 3.0 over the coming 18-24 months.
So example wording could be : Vendor will ensure website (or App) conform with the prevailing Web Content Accessibility Guidelines (WCAG) Standards to AA level - Currently at WCAG 2.1 AA.
3. Define Core Deliverables and Documentation Required
Depending on the term and intention of the relationship, it could be a longer relationship if the agency will be maintaining the site or app.
Consider the documentation you would like to have as part of the initial and ongoing deliverable to give you a clear indication that the who agency did the accessibility work and is maintaining accessibility. Documentation will be valuable if you are asked to show your site or app is accessible in a future legal or contractual situation.
So example wording could be: Vendor shall maintain and retain, subject to review by client, full documentation of the measures taken to ensure the web site is in compliance with the applicable WCAG standard, including records of any automated, manual and user testing or simulations conducted.
4. Establish Responsibilities in context of Accessibility
Website and Apps change all the time. In many agency / client relationships, content updates and changes can be performed by either parties. This means it’s important to set out what part of accessibility the agency is responsible for and which is the responsibility of the client.
The WCAG guidelines include areas of accessibility in relationship to video and other content that are most likely be added by the client. It’s only fair to be clear that the client will take as much care as possible to ensure accessibility is maintained, that includes making design and UX choices that give the agency a clear ability to deliver an accessible experience.
So example wording could be: Vendor will make all efforts to ensure that all work performed, designed suggested , templates used and functionality developed by them will following the WCAG 2.1 AA guidelines and pass all relevant Success Criteria below. Accessibility of Content added to the site by client such as video and images are the responsibility of the client and any design changes or decisions requested by client that the vendor identifies as potentially violating any of the below Success Criteria will be made with the knowledge of the client taking responsibilities for such decisions.
5. Outline how to handle disputes
Lastly it can be good to outline how disputes around the accessibility of a website or app will be handled. This will allow the two parties to quickly identify and remedy any accessibility issues on the site or app.
Example wording could be: If a Vendor claims the website satisfies the applicable WCAG Standard, and it is later determined by the Client that any part of the website is not in compliance, Client will promptly inform Vendor in writing of the noncompliance, and Vendor shall, at no cost to Client, remediate website within the time period specified by Client. If Vendor fails timely to make the remediation, Client may, in addition to any other rights or remedies: (a) cancel the contract (or the specific deliverable) without termination liabilities and/or (b) perform, or have performed any necessary remediation, and Vendor shall promptly reimburse Client (or Client may credit against any sums due Vendor) the amount of any expenses incurred thereby.
With the continued threat of legal action, companies will increasingly look to third party vendors to take responsibility for building, checking and maintaining ADA accessible Websites.
Companies and web agencies should be proactive and have standard language ready to be added to contracts. Web Agencies that get ahead of these provisions will be able to control the effort level and add value to contracts associated with accessibility.
While we hope this blog is helpful, UsableNet has broad experience helping both companies and web agencies and we're happy to talk to both provide guidance on accessibility for Websites and Apps.