It’s time for an “accessibility-first” (not just accessible) Learning Management System (LMS)

BY DOUGLAS GIMENES, YESLMS CO-FOUNDER

It’s easy to be confused about laws in general. It’s even easier to be confused about the law when it comes to accessibility issues—especially when those accessibility issues are about software, including websites and software-as-a-service. Many businesses are starting to implement principles of Universal Design for Learning (UDL), which treats accessibility as more than a compliance afterthought, in their software and web-based strategies. But many businesses don’t see either the legal reasons or the common sense reasons for using UDL.

Recently a friend of mine, a senior vice president at a large US-based company, confessed to me,

“I’ve heard all about Section 508, but that only applies to federal agencies. We don’t plan to be one of those any time soon. Plus, we don’t have any employees with disabilities working here, and we don’t plan to hire any disabled people any time soon. Why should we invest in a bunch of features that nobody’s going to use?”

I was surprised by what my friend said. His candor is telling. It suggests that a lot of people might have questions about accessibility in the workplace that they are too afraid to ask. But thoughtfully addressing accessibility issues (or choosing not to address them) can have serious and far-reaching implications for the future of your organization. In all reality, it’s a common misconception in many businesses that we don’t need to think about people with disabilities as part of our business strategy. Here are some compelling reasons why we do.

The ADA is slowly being expanded to cover apps and websites, which means that U.S. businesses can already be liable

My friend is right that Section 508 of the Rehabilitation Act of 1973 only applies to federal agencies. However, many non-federal web services are still required to be accessible under other laws, such as Section 504, if the organization receives federal funding or assistance. If changes to U.S. policy on Section 508 seem far off, there are other things to consider to protect private businesses from potential lawsuits or public relations issues. Most notably, the Americans with Disabilities Act, or ADA, has been coming up in the court systems more and more as web interfaces become a regular part of doing business in the U.S.

For example, Domino’s Pizza was the subject of a lawsuit in 2017 claiming their public-facing website and app were not accessible to blind or visually-impaired individuals using screen readers.

The case, Robles v. Domino’s Pizza, LLC, was initially dismissed but then reversed on January 15, 2019 by the Ninth Circuit Court of Appeals (2). The case found that “even though customers primarily accessed the website and app away from Domino’s physical restaurants,…the ADA applies to the services of a public accommodation, not services in a place of public accommodation.” Because “the website and app connected customers to the goods and services of Domino’s physical restaurants,” it was covered under the ADA. In other words, even though the lawsuit didn’t deal with accessibility in a physical location, Domino’s was still on the hook for providing accessibility to its website and app for its customers under the ADA, because the purpose of the app was to connect customers to the “goods and services of Domino’s physical restaurants.”

According to these court cases, businesses have already been given “fair notice” that accessibility is required

Another important finding of the Domino’s case was that the court can order compliance with WCAG 2.0 [the recognized international benchmark for web content accessibility] if finds that a company’s website and app fail to satisfy the Americans with Disabilities Act. Not only that, the court found that “the Constitution only requires that Domino’s receive fair notice of its legal duties, not a blueprint for compliance with its statutory obligations.”

In other words, even if the US government has yet to enact any formal requirements on website accessibility for private businesses, legal judgments are increasingly more likely to favor plaintiffs as these issues become more visible—and legally, that means that all businesses have been given “fair notice” that accessibility is a reasonable expectation of the web properties of private businesses.

Domino‘s is far from alone. In 2018, the number of website accessibility lawsuits filed in federal court, under Title III of the ADA, grew to over 2,200 cases. That was a 177% increase from the year before—there were only 814 lawsuits of the type in 2017 (3). All of these lawsuits alleged in different ways that plaintiffs with a disability could not use websites “because they were not coded to work with assistive technologies like screen readers, or otherwise accessible to them.”

The rising number of lawsuits like this suggests that your business can be liable—beyond even what the Domino’s court case reflected. Even if you don’t provide web services or apps to the general public like Domino’s does, there are other ways you could open yourself up for legal actions if you’re not considering accessibility in your business strategy.

Think “we don’t have any employees with disabilities working here” covers it? Think again.

In order to attract the best and the brightest, a business needs to think about people with disabilities. Taking disabilities and accessibility into account is strategic, and not only for the obvious reason that it expands your available talent pool. It also accounts for the reality that any of us can become disabled at any time—including any of your current employees.

The workplace is aging, and that means that thinking about accessibility for a current employee who starts to have more issues with reading, for example, will soon be inevitable. Thinking about accessibility is an indispensable strategy for retaining the talent and skill you have cultivated in a long-standing employee.

Not only that, but workspaces work better for *everyone—*not just folks with disabilities—when accessibility is considered first. That is the philosophy behind using Universal Design for Learning (UDL) principles—it goes beyond just protecting yourself and your business from legal liability, but it accomplishes that too.

International standards for accessibility are changing, and the U.S. will soon have to follow suit

Even if you’re not currently part of the federal government or planning to work with them any time soon, you might want to look at international trends and their implications for private U.S. businesses.

For example, a report by the U.K. Cabinet Office found that “97% of official sites were unusable by disabled people, largely because they ignored well-known techniques for making data accessible… (and) the best stimulus to making sites accessible were legal penalties for non-compliance” (1).

Even if you don’t do business in the U.K. and don’t plan to anytime soon, there are reasons to care about what they’re doing in the U.K. The U.S. Department of Justice cares what the UK and the global community think. As a result, they are considering proposing the recognized international benchmark, WCAG 2.0 Level AA, as the U.S. accessibility standard for web content. They are also likely to agree with the findings of the U.K. Cabinet Office about the need for legal enforcement to drive compliance with these standards.

Going Above and Beyond is Just Good Business Strategy

Sign language — Smiling boy with assistive listening device learning sign language

While an accessible website or software-as-a-service can mitigate potential legal issues, there are other, more fundamental, advantages having a solution built using Universal Design for Learning (UDL) that treats accessibility as more than a compliance afterthought.

By making educational resources accessible to every individual, organizations can expand the scope of recruiting efforts to address critical talent shortages while also better serving the needs of current employees who may become disabled.

“Organizations need to consider people with disabilities, an untapped pool of critically skilled talent,” a leading research and advisory company writes in a recent report. Gartner, the company, found that AI and other new technologies are now making work more accessible for those with disabilities—and benefiting the companies that hire them as well.

“Gartner estimates that organizations actively employing people with disabilities have 89% higher retention rates, a 72% increase in employee productivity and a 29% increase in profitability. In addition, Gartner said that by 2023, the number of people with disabilities employed will triple, due to AI and emerging technologies reducing barriers to access.” (4)

So, to answer my senior vice president friend’s question(s), you may not be legally required to support accessibility standards any time soon,

You may not want to be a government contractor any time soon,
You may not need to apply international standards any time soon,
You may not have on your radar the growing body of lawsuits with other private-sector companies,
You may not see the point of expanding your talent pool to include people with disabilities (including current employees who may become disabled) right now,
You may not think you need a Learning Management System (LMS) based on Universal Design for Learning (UDL) right now,
And you may not even want to improve retention rates, productivity or profitability any time soon.
But the day is coming, and it might be sooner than you think.

Are you ready to make a change with your learning management system?

Sign up for your free demo of YesLMS today and see how we can help you navigate the changing landscape of accessibility.

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