WHITE PAPER: Julee Peterson & Brian Keenan

The alarming rise of accessibility lawsuits threatening EdTech and what to do about it

EdTech companies need to be serious about ADA compliance, and fast. Recently, the education industry saw a 700% increase in ADA lawsuits in just one month.

 

In October of 2018, the industry ranked 8th with five lawsuits filed. By the next month, it was 2nd with 35 filings (Source). Simply put, making products accessible for ALL users is more than a requirement, it’s the right thing to do. On the business side, the consequences of not doing so include ADA lawsuits, declining sales, and negative brand perception.

How This White Paper is Organized:

  1. Why so many products fail to meet compliance standards. A quick look at some of the common reasons why product teams don’t address compliance issues.
  2. Understanding ADA compliance. An overview of the organizations, rules, and affected populations.
  3. What’s at stake for EdTech. An alarming trend threatening EdTech and why buyers of your product might turn away.
  4. How to become and remain compliant. A simple plan that EdTech product leaders can take to get on the path to ADA compliance.
  5. The upsides of compliance. The benefits include reducing the risk of declining sales and lawsuits and gaining a new competitive edge.

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 the bottom line. So 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.

  1. 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.
  2. 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.
  3. 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. It’s a bit of 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 great 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 ADA Compliance

How many students live with disabilities?

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, estimated the total number of elementary and secondary students to be 56.6 million and 19.9 million at colleges and universities. Of those, 13% of primary and secondary students (more than 7 million), and 11.9% of postsecondary students (more than 2 million) live with disabilities that challenge their educational success.

Governing Authorities and Measurement Criteria for Disability Tracking

The number of people living with disabilities varies based on which organization you look to and what their tracking criteria are.

The World Health Organization (WHO) estimates that “about 15% of the world’s population lives with some form of disability, of whom 2-4% experience significant difficulties in functioning.” The difference between the percentage of disabled children and the percentage of non-disabled children attending primary school ranges from 10% in India to 60% in Indonesia. In secondary education the difference in attendance ranges from 15% in Cambodia to 58% in Indonesia. Even in countries with high primary school enrollment rates, such as those in eastern Europe, many children with disabilities do not attend school.

According to a report by the Centers for Disease Control (CDC), “1 in 4 US adults now live with a disability, with cognitive disability most common in younger adults and mobility disabilities most common for others.”

The Yang-Tan Institute on Employment and Disability at Cornell University provides this useful search tool for understanding the distribution of a number of different types of disabilities across the U.S.

Types of disabilities that challenge people in educational settings.

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 among the general populations.

Disabled students, instructors, and administrators who use EdTech products are a very diverse group of people with a wide range of visible and hidden impairments that include:

  • Vision
  • Movement
  • Thinking
  • Remembering
  • Learning
  • Communicating
  • Hearing
  • Mental health
  • Social relationships

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. In short, if you adhere to WCAG 2.0 or 2.1 AA standards, you will meet internationally accepted levels of accessibility compliance.

Note: At Openfield, we recommend following the updated 2.1 release to get ahead as it covers all of the requirements of its 2.0 predecessor and it’s a matter of time before they are adopted as the new standard to follow.

The World Wide Web Consortium (WC3), The Web Accessibility Initiative (WAI) and Web Content Accessibility Guidelines (WCAG)

The World Wide Web Consortium (W3C) is the body that provides comprehensive international standards for accessibility on the World Wide Web. Its Web Content Accessibility Guidelines (WCAG 2.0 and subsequent 2.1 release) were 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.

The Americans with Disabilities Act (ADA) of 1990

In the U.S. the ADA prohibits discrimination and guarantees that people with disabilities will have the same opportunities as everyone else to participate in mainstream American life – to enjoy employment opportunities, to purchase goods and services, and to participate in State and local government programs and services. The law was amended in 2008 (ADA  Amendments Act of 2008) and changes took effect on January 1, 2009.

Section 508 is often confused with ADA

Section 508, in the U.S. is not part of the ADA. It is a 1998 amendment to the Rehabilitation Act of 1973 that requires federal agencies to make their electronic and information technology accessible to people with disabilities. If you follow the WC3’s WCAG 2.0 or 2.1 guidelines, you will satisfy Section 508 requirements.

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.

ADA compliance is what’s required. Inclusive design is what’s right.

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. At a basic level, ADA compliance is about fulfilling your obligation to meet WCAG 2.0 standards while inclusive design 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 and well as those we think of as temporary or situational disabilities 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 merely 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.

Examples of temporary or situational disabilities that a person may experience:

  • Diminished vision while moving from one building on campus to another due to bright sunlight.
  • Reduced screen brightness when in low battery mode.
  • Limited mobility caused by an injury such as a broken or sprained appendage.
  • Having one less free hand for a mom caring for her newborn.
  • Using apps designed to assist in driving a car.
  • Reduced hearing while in large crowds or while traveling on trains or airplanes.

In upcoming articles, we will review in detail the benefits and best practices of inclusive design.

What’s at Stake for EdTech

In Q4 of 2018, education saw a 700% jump in ADA lawsuits filed in just one month, jumping from 5th to 2nd place on the list of most sued industries. As they seek to reduce legal risk on behalf of their institutions, buyers of EdTech products will take a pass-fail stance. As a product leader, you need to be concerned with decreased sales, rising lawsuits, and a bad rap. Be prepared for increased scrutiny from your buyers.

Action by the U.S. Department of Justice is on the rise.

According to Inside Higher Ed, a leading online source for higher education news, hundreds of colleges and universities across the country are currently under investigation by the Education Department’s Office for Civil Rights for accessibility violations. 

In a recent report by Level Access, a leading provider of accessibility services, the education industry saw a big jump in ADA lawsuits filed in Q4 of 2018. In October, the industry ranked 8th with 5 lawsuits filed. By November, education vaulted to 2nd with 35 filings – a 700% increase in just one month. The trend is keeping product leaders awake at night.

“The biggest surprise of November, though, was an explosion in web accessibility lawsuits naming colleges and universities. With 35 new complaints, the Education sector easily moved into second place in November, accounting for 15% of all cases filed. The lawsuits named universities across the United States, including at least one Ivy League institution, two art schools, and a number of regional colleges. While we have seen ADA lawsuits against universities before, most complaints have instead traditionally gone through the Department of Education Office for Civil Rights.” Source: Level Access

3rd party software providers have been called out as part of the problem.

In many recent actions against educational institutions, DOJ complaints have included the use of inaccessible 3rd party software solutions such as learning management systems (LMS) and online courseware. Resolutions with colleges, universities and school systems have required institutions to avoid requiring students to utilize such inaccessible products.

K-12 lags behind higher ed.

Members of the Openfield team recently attended the 2019 SXSWedu conference in Austin. In a session focused on accessibility in K-12, a panel of leading experts shared a comprehensive overview of the subject. The consensus is that while there is much to do to address accessibility issues in higher education, K-12 lags far behind.

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  2.0 or 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 The State of Digital Accessibility 2019 report by Level Access & G3ict, 54.6% of legal & compliance professionals said they are stepping up their accessibility plans in response to upward litigation trends.

Sales Risks

This is the most likely scenario for most of the clients we work with because it’s their buyers at large institutions who 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.

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. That can be a very deep hole to dig out from.

54.6% of legal & compliance professionals said they are stepping up their accessibility plans in response to upward litigation trends.

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, a thorough manual audit needs to be conducted. 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 starts with empathy – it’s hard to understand how important all of this is if you do not have empathy for your users. Communicate your position on accessibility throughout the company. 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 and testing with disabled users, your team will be shocked by how difficult it is to perform functions they normally take for granted.

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.

Members of the Openfield team simulate disabilities during an internal empathy building session.

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 either WCAG 2.0 or 2.1 standards 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.

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 team:

  • What standards are we meeting to ensure accessibility compliance?
  • Can we demonstrate that we are meeting WCAG 2.0 standards (preferably 2.1)?
  • What is our process for ensuring accessibility compliance?
  • What tools and processes do we utilize to assess our level of compliance?
  • 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?

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 WCAG 2.0 or 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?

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?

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 and helping the product team undertake 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 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

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. 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 accessibility and inclusive design, feel free to contact us. And be sure to sign up to receive regular insights from our team.

  • Photo of Julee Peterson
    Julee Peterson

    As Accessibility Lead / Senior UX Designer at Openfield, Julee brings a tireless dedication to creating stellar user experiences that work for ALL users by leading our efforts to stay at the forefront of ADA compliance and inclusive design practices. She holds a Master of Science in User Experience Design from Kent State University. Outside of the office, Julee enjoys cruising on her motorcycle when the weather’s nice, gardening and furthering her love of cooking and baking with challenging new recipes. She is currently satisfying her thirst to learn new things by teaching herself to play the cello and speak Korean. 반갑습니다!

  • Photo of Brian Keenan
    Brian Keenan

    As a Co-founder of Openfield, Brian’s focus is helping business leaders understand how UX research and design can help them increase speed to market, while reducing risk and waste. He is an avid student and practitioner of landscape photography, which pairs well with his love of road tripping and exploring vast and wild destinations.

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