The continued rise in accessibility lawsuits is a looming threat for EdTech products, so it’s time to get serious about ADA compliance. COVID-19 offered a variety of new challenges for organizations, including having to adapt to remote conditions. During the early months of the pandemic, the number of federal claims slowed; however, the number has still continued to grow since 2019. What does this mean? Once again, EdTech product teams need to be alert and adapt quickly.
UsableNet recently released their 2022 Midyear ADA Website and App Accessibility Lawsuit Report. Their data shows a continual increase in the number of ADA-based digital lawsuits between 2019 and 2022, and predictions hint towards another year of rising cases. The report also identifies a trend. Many large companies, including those with the resources to create programs dedicated to accessibility, have already been sued. Naturally, this could mean a progression towards smaller companies without these same resources.
Now more than ever, EdTech product leaders need to be aware of the accessibility issues that threaten their organization. Disregarding ADA compliance could mean facing lawsuits, declining sales and negative brand perception. However, practicing inclusivity can mean increased access and reduced friction. Most importantly, making products accessible for all users is more than a requirement, it’s the right thing to do.
Remote and hybrid environments are here to stay. As institutions seek out learning technologies for their classrooms, there are opportunities for accessible products that effectively reach a wider range of instructors and students. With this, EdTech organizations have the opportunity to create entirely new accessible technologies, as well as make existing technology more accessible. When everyone in a community can use your technology, it has a greater impact and is more likely to achieve positive results.
In addition, organizations have the opportunity to strengthen their digital ecosystem and to encourage the whole team to get involved in the advocacy for accessibility. Proactively setting your organization on the right track for compliance will help ensure that your product can withstand the inevitable changes over time.
Why So Many Products Fail to Meet Compliance Standards
Making your product accessible for ALL your users is both the right thing to do as a good corporate citizen as well as the safe thing to do for your bottom line. So then why are so many product teams scrambling to catch up on accessibility compliance?
While it’s true the shifting nature of regulatory and market conditions has challenged product teams to stay on top of accessibility standards, many industries have been slow to recognize the risks of non-compliance.
Top Excuses for Delaying ADA Compliance:
It may be tempting to put compliance off for another day, especially if your competitors appear to be ignoring it. But remember, your buyers are taking active measures to protect themselves so they don’t fall prey to common justifications for ignoring best practices.
- The “it’s not a problem until it’s a problem” mindset. It’s actually a very real and immediate problem as we will outline in this white paper.
- The “our competitors aren’t doing it yet either” excuse. For all you know, they could be just a few days from a major release that will allow them to position their product as a less risky alternative to yours.
- The “we can’t slow down right now because we need to keep pace with our competitors” excuse. A false sense of security will mean nothing when everyone is forced to comply or be passed over. That’s not a race you want to run under duress.
If your product isn’t where you’d like it to be when it comes to accessibility standards, you’re not a failure and you’re certainly not alone. You and your team work hard. You care deeply about the success of the product. And it can be a gut punch to learn there may be landmines waiting inside of the thing you so carefully built together. If you’re feeling a sense of unease, wondering if your organization is at risk or if leadership will hold you accountable, the good news is that you’ve taken the first step already by reading this far.
Understanding the Scope of Those Living with Disabilities
One of the most common mistakes product teams can make is to underestimate the number of users who live with disabilities. But numbers reported by the National Center for Education Statistics (NCES), the primary federal entity for collecting and analyzing data related to education in the U.S. and other nations, demonstrates the number of students living with disabilities who are undoubtedly using EdTech products is not to be overlooked.
- 15% (7.2 million) of all public school students received special education services
- 33% of students receiving special education services have learning disabilities
- 19% of students receiving special education services had speech or language impairments
Additional resources for understanding the scope of individuals living with disabilities include:
- Disability and Health Promotion (CDC)
- Disability (United States Census Bureau)
- Factsheets on Persons with Disability (United Nations)
Types of disabilities that challenge people
According to the Center for Disease Control (CDC), “a disability is any condition of the body or mind (impairment) that makes it more difficult for the person with the condition to do certain activities (activity limitation) and interact with the world around them (participation restrictions).” The nearly 10 million primary, secondary, and postsecondary students living with disabilities reflect the variety found in the general population.
There are many factors that impact how users might interact with our products. In fact, not all disabilities are permanent. Everyone has probably encountered situational impairments at one time or another. Examples include trying to use a product in bright sunlight or with only one hand. To that end, accessibility affects us all, even if we don’t realize it. That’s why it’s so important to create products that offer a variety of accessible solutions.
Situational Disabilities
Our environment and situation impact our abilities. People encounter situations that limit their ability to hear, see, concentrate, understand or use their hands. For example, it becomes difficult to see a screen in sunlight or even use a phone in the cold without removing gloves. A new parent might have a situational disability if they’re holding a child and cannot use their hands. These limitations are an example of how accessible design helps everyone.
Temporary Disabilities
Broken bones, certain illnesses, medical recovery or other conditions that are not substantial enough to cause permanent conditions are considered temporary disabilities. While conditions like these are not substantial enough to be considered disabilities, they impact how users are able to interact with the world and with our products.
Permanent Disabilities
Permanent disabilities are physical or mental conditions that affect people’s abilities to perform functions and interact with the world around them. These conditions are typically lifelong, and impact how people perform certain activities.
Who Sets Accessibility Rules and Standards?
Depending on where your users live, there are a number of governmental and non-governmental organizations (NGOs) that dictate requirements and offer guidelines.
The World Wide Web Consortium (WC3), The Web Accessibility Initiative (WAI) and Web Content Accessibility Guidelines (WCAG)
The W3C is the body that provides comprehensive international standards for accessibility across the internet. WCAG was created to provide guidelines and compliance measures that go beyond those set forth by Section 508 (U.S. only). They are widely considered the leading authority for creating accessible websites and digital products and should be followed by all EdTech product development teams.
W3C provides period updates to WCAG guidelines. Currently, product teams should adhere to WCAG version 2.1.
WCAG 2.1 was completed in June 2018 and product owners are now being held to this standard. These are the requirements that virtually all demand letters, federal and state lawsuits, DOJ, and Dept of Education actions have called for. Regardless of how firm this standard may technically be, in practice, if you wish to avoid litigation and wish to make your website accessible, t2.1 A, AA is the working standard in the United States and Canada.
While adhering to WCAG 2.1 does not equate to ADA compliance, it does provide good guidance and practical remediations for issues that are likely to not be ADA compliant. Adhering to WCAG 2.1, using a variety of tools to test your product and testing with disabilities will help keep your product ADA compliant.
In short, if you adhere to guidelines set for by The World Wide Web Consortium (W3C) you will meet internationally accepted levels of accessibility compliance.
The next iteration your team should be planning for will be WCAG 2.2, currently slated for December 2022, according to the W3C’s working group. Its aim is to improve accessibility guidance for users with cognitive or learning disabilities, low vision and disabilities that hamper use of mobile devices. At Openfield, we plan to monitor industry input on this release in case there are tweaks before immediately rolling it out. But don’t fret, WCAG 3.0 will not supersede WCAG 2, and WCAG 2 will not be deprecated for at least several years after WCAG 3 is finalized.
Understanding levels of conformance.
W3C outlines three levels of WCAG conformance – A, AA, and AAA. It is widely accepted best practice for products to conform to AA compliance levels. According to W3C: “It is not recommended that Level AAA conformance be required as a general policy for entire sites because it is not possible to satisfy all Level AAA Success Criteria for some content.”
For detailed information about A, AA, and AAA requirements, visit W3C’s site.
Where does inclusive design fit in all this?
ADA compliance is what’s required. Inclusive design is what’s right. Many people confuse the two. The majority of recent federal claims reference the obligation to meet WCAG 2.1 AA standards. Adopting an inclusive design program, however, is a philosophical approach that goes well beyond mere compliance.
Inclusive design is a broader way of thinking about accessibility that includes achieving compliance with current WCAG standards, but also disabilities that are not part of ADA requirements that affect even non-disabled users. Typically, those who practice inclusive design in product development are already fully compliant, or well on their way to covering the complete range of standards outlined by WCAG 2.1. Those who only seek to meet basic compliance levels are missing low hanging fruit opportunities to raise their user experience to the next level through the practice of inclusive design.
The Post-Pandemic Effects of Digital Accessibility on EdTech
COVID-19 left many organizations scrambling to meet ADA requirements while shifting to a remote environment. According to Level Access, a leading digital accessibility solutions company dedicated to helping organizations achieve accessible solutions, inclusion was a top driver for educational organizations in 2021. Additionally, 71% of organizations have prioritized buying a product or solution because of its accessibility. In the mad dash for compliance, risks and opportunities for digital accessibility have arisen that impacts how EdTech companies will move forward.
Know Where Your Risks Lie
Non-compliance introduces a number of risks that fall in three broad categories. The most immediate and likely threat is the potential for sales to decline as your buyers look to mitigate risk by favoring competitors whose products satisfy accessibility standards.
- Legal Risk
This is the first and most obvious type of risk. If you are not in compliance with WCAG 2.1 standards and users can show that your product discriminates against them in a way that violates the law, they may choose to file costly lawsuits and the DOJ may get involved.
According to UsableNet’s 2022 Midyear Report, there are about 100 lawsuits per week. At this rate, there will be an estimated 4,455 lawsuits by the end of 2022. The report further explains that many defendants have less than $25 million in annual revenue, which reflects a need for plaintiff firms to identify new companies to sue to maintain their volume. Many of the largest companies have already been sued and have programs in place for accessibility. Additionally, the increase in sales due to the pandemic has brought more attention to smaller brands. What does this mean? Smaller, up-and-coming companies could be at risk.
- Sales Risks
This is the most likely scenario for most of the clients we work with because their buyers at educational institutions are more likely to be named as plaintiffs in ADA lawsuits. But you can be sure that legal teams and purchasing departments at educational institutions are well aware of the increase in non-compliance lawsuits in education and they are most certainly looking for ways to reduce their risk. One of the ways they will do this is to place higher scrutiny on 3rd party products and services they require their students to use. To mitigate their own risks, they will favor products that are compliant.
More often, it’s becoming a line item on RFPs from buyers. If you can’t show that your product is compliant, or you don’t at least have a Voluntary Product Accessibility Template® (VPAT) that clearly outlines your plan to get there, doors will slam shut for your sales team. See more about VPATs below.
The bottom line – if your product isn’t compliant, prepare to see a dramatic reduction in sales. Don’t be on the wrong side of this trend.
- Brand & Reputational Risks
Instructors and students have a say in what products are purchased by institutions. Your brand may be judged harshly if deemed to be apathetic to users with special needs. Once buyers deem your product to pose a risk to their institution, that can be a very deep hole to dig out from.
How to Become and Remain Compliant
Below are a number of steps you and your team can take to remedy compliance issues and establish a long-term culture of accessibility.
Conduct an audit to assess your level of ADA compliance and know the rules.
Your UX team can help you think through and execute compliance standards and utilize a number of automated tools, but for a comprehensive review, you need to conduct a thorough manual audit. We recommend involving one of a number of specialized accessibility service providers to help you assess your product’s compliance readiness and formulate an actionable plan to remedy issues. Below are a few providers that can help you establish a baseline:
Establish A Voluntary Product Accessibility Template® (VPAT®)
The Information Technology Industry Council (ITI), a trade association that represents companies from the information and communications technology industry, offers the VPAT® free of charge. It is the leading global reporting format adopted by purchasers at federal, state, and local governments, non-profits, and many private-sector procurement departments that require vendors to meet accessibility standards in the products and services they offer.
Purchasing departments at educational institutions will want to see a VPAT® for your product because it helps them understand whether or not your product will introduce risk for their organization.
To learn more about the VPAT®, visit ITI’s website.
Make accessibility a core tenet of your culture.
It’s hard to understand how important all of this is if you do not have empathy for your users. Encourage the whole team to get involved in the advocacy for accessibility. Conduct regular empathy building sessions in which you impose simulated disabilities upon members of your team, such as blindfolding or limiting usage to one arm. Then ask them to perform key tasks using your product. While it’s not a replacement for actually talking to and testing with users with disabilities, your team will be shocked by how difficult it is to perform functions they normally take for granted.
But don’t stop there.Our products are always changing, therefore, so should the way we think about accessibility.
Accessibility issues manifest during design and engineering phases, but their roots take hold much earlier and easier when accessibility is not a cultural tenet held by all members of the product team.
Test your products with users who live with disabilities.
The only way you can be sure that your product works for all your users is to make sure those you test with represent the full spectrum of your user base. According to Level Access’s 2021 State of Digital Accessibility Report, 96% of those surveyed agree that testing by people with disabilities is important.However, the report also showed that 53% of organizations are not doing it.
What product leaders can do.
Accessibility is essential to responsible roadmap planning. You should require your team to incorporate best practices early and throughout every phase of the product life cycle.
Product leaders must insist that all releases be compliant to current WCAG 2.1 standards and new versions in the future. Without that, there is no “V” in “MVP.’ Furthermore, all members of your team need to embrace the expectations for compliance set for your organization. Be sure that leadership understands what’s at stake and approves budgets that will allow your team to do what’s needed.
Accessibility is a team sport. Form a council of representatives from key discipline areas to meet regularly to assess risks, set goals, and ensure active participation from their groups.
This should include any internal and external partners from UX, engineering, marketing, sales, customer support, and the CX team if your company has one. Creating a shared sense of ownership will inspire faster adoption throughout your ranks. Larger companies with greater resources should consider creating a role whose sole responsibility is ensuring accessibility.
Elect leaders to support the team and encourage growth with a measurable impact. Define inclusive vocabulary, and use it with intention (just because something is accessible, doesn’t mean it’s inclusive). Define a process that works best for your team by encouraging communication and collaboration across various specialties.
Keep in mind that compliance doesn’t have to happen all at once.
Organize issues into manageable chunks starting with the worst violations established in your audit. Make a plan to introduce improvements in stages. If your buyers know you have a plan and see you making progress, they are much less likely to abandon your product abruptly.
What to expect from your UX team.
Whether you have an in-house UX team, an external partner or a combination of both, they should play the central role in your accessibility efforts. Because after all, meeting WCAG standards is about ensuring that your product delivers a good experience across ALL users.
What to ask your UX Designers.
- What standards are we meeting to ensure accessibility compliance?
- Can we demonstrate that we are meeting WCAG 2.1 standards?
- What is our process for ensuring accessibility compliance?
- What tools and processes do we utilize to assess our level of compliance?
- How are we documenting key decisions and accessible considerations?
- Are we incorporating, or do we plan to incorporate inclusive design methodologies?
- What disabilities does our level of compliance address?
- Are there any specific types of disabilities that are more prevalent in our user population than the general population? If so, what are we doing to meet those needs?
- Are we planning for future WCAG updates (2.2 and beyond)?
What to ask your UX Researchers.
- Are forms (NDA’s and Consent forms) saved as accessible files and sent to participants ahead of the session?
- Are we testing with users who have disabilities?
- How are we accommodating these participants?
- How are we defining and documenting accessibility test cases?
- Are we using thoughtful and inclusive language when screening participants?
- Do we ensure that scripts and surveys are run through reading level checkers, and that we show the wording of our tasks on the screen while testing?
What to expect from your engineering team.
In our experience, engineering teams are often constrained by immense deadline pressure. Like your UX team, they too take great pride in the quality of the user experience and care deeply that their work contributes to the overall success of the product. Product owners should involve engineering early and often so they understand what’s at stake and can participate actively in solving existing compliance issues and establishing long-term best practices.
What to ask your Engineering team:
- Does our code inherently address 2.1 standards?
- What QA methods do we use to test for compliance?
- What tools are we using to automate, and manually test?
- What is our cadence for testing?
- Are we building accessible components that can be reused elsewhere in our products?
- How are we incorporating Accessibility success criteria into the process?
- Are we planning for future WCAG updates (2.2 and beyond)?
Marketing and sales need to get involved.
It’s important that your sales and marketing teams understand the risks and rewards of compliance. If your product is not yet fully compliant, they need to know how to talk to customers about your plans to remedy issues. And once compliance is achieved, they’ll have a new point of differentiation against your competitors. They also need to know that accessibility is not limited to the product itself – content such as emails, blog posts, webinars, even images on social media channels all need to be accessible.
Create a dialogue with the keepers of the brand guidelines so everyone knows how the visual and verbal language plays a role in accessibility. In our experience, brand standards are often created with little or no consideration for how specific design elements such as colors, font sizes, and contrast affect the accessibility of a digital product. Your UX team should collaborate with your brand designers to ensure such details are taken into consideration when brand guidelines are established.
What to ask your marketing and sales teams:
- Have we conducted an audit of our competitors’ accessibility levels?
- If your product is already compliant: Does our marketing and sales content make it easier for buyers to choose our product because we meet current WCAG standards?
- If your product is not yet fully compliant: Are we hearing feedback related to ADA compliance from purchasing departments? If so, how are we responding?
- What questions related to accessibility and inclusive design are we seeing in RFPs?
Your legal department is there to protect you and the business.
Obviously, your company’s legal department or outside counsel should be involved in understanding the implications associated with compliance. They should help the product team take the appropriate measures to protect the business.
What to ask your legal team:
- Is our legal team aware of the risks of inaccessibility and sharing that with your executive leadership team?
- Is there a resource on our legal team who can help the product team remain current in the face of shifting compliance regulations in the markets we operate in?
- What level of compliance is, or will be, required by leadership and at what points should our legal team be involved in reviews?
Enjoying the Upsides of Compliance
COVID’s impact on EdTech has created long-lasting effects. As more and more ADA lawsuits are filed against educational institutions, they will have little choice but to abandon products that don’t meet accepted standards or seek opportunities to create more inclusive products. However, if you follow the steps outlined in this white paper, you will be well on your way to lowering the chances that your product will be shunned by your customers.
Like any new discipline, the hardest part is getting moving. Once you’ve gotten over the hump of fixing issues, the team ownership and a renewed process will have its own inertia that will make it easy to remain compliant in the future.
Think about the high-fiveable moments you’ll enjoy once you’ve become a compliance hero:
- You and your team will have made a major contribution to shoring up the health of your company by fixing issues and adopting a new long-term process for integrating compliance planning, execution, and testing processes.
- Your sales team will win more easily because your product will be differentiated by its compliance excellence.
- Positive brand perception among your customers’ users will rise as your company is widely credited as a market leader in the area of accessibility.
- Most importantly, you will have contributed to the greater good by ensuring ALL users can enjoy the benefits of your product. Isn’t that a nice thought to fall asleep to?
If you’d like to talk more about how your UX team can help you with your accessibility and inclusive design concerns, feel free to contact us. And be sure to sign up to receive regular insights from our team.
