22 Understanding ADA Website Compliance - Greg Bray Jun 2 2022

Erik Martinez: [00:00:00] Welcome to the Digital Velocity Podcast. I'm Erik Martinez from Blue Tangerine.

Tim Curtis: And I'm Tim Curtis from CohereOne.

Erik Martinez: Today on our show, I'd like to welcome Greg Bray, President and Co-owner of Blue Tangerine to discuss the not-so-fun topic of website ADA compliance. Greg, welcome to the show.

Greg Bray: Thanks for having me. I'm excited to talk about this with you guys today.

Erik Martinez: And the only reason I say it's not so fun is because this is one of those topics that's not very sexy or exciting to talk about, but it's hugely important as there is a [00:01:00] incredible amount of lawsuits going out the door right now, post-pandemic. Hey, Greg, as we get started, why don't you give us the 30-second synopsis of who you are and how you got into studying this topic.

Greg Bray: So, I have been in web development for my whole career. I did a bachelor's in computer science and ended up, my first job out of school, coding HTML pages. I was a government contractor and we had an EPA contract where we were converting their documents and putting them on this new thing called the internet. So, we were taking all these big reports and there were no tools to do that. It was all hand-coding, but since then, learned a lot about marketing along the way since the web is a big part of that. Got an MBA along that path as well to better understand the business side of things.

Recently really got into understanding accessibility, ADA compliance, and things because our clients needed to understand it, and we wanted to be sure that we could support them and give them the best website they needed to have.

Erik Martinez: And by [00:02:00] recently, I think you mean like, it's been the past couple of years that you've been looking into this topic.

Greg Bray: Yeah. It's been, it's been several years. Yeah, definitely. The last few years.

Erik Martinez: So Greg, why don't can you tell us a little bit about what ADA compliance for a website really is? Are there any laws? Are there specific things? Are there guidelines? Is it the wild west? What is this thing?

Greg Bray: It's really become interesting how the labels have evolved. The official technical term for web developers is accessibility. That's the term that we use, but it has now become known as ADA compliance. So, when we talk about ADA we're referring to the Americans with Disabilities Act, and often when people refer to that, they're talking about building codes, for example. So, the ADA gets into things like wheelchair ramps or the width of doorways, or the extra handrails in restrooms, all kinds of details. It also gets into things such as menus in restaurants. [00:03:00] If somebody is blind, you know, whether there's a braille available menu or something along those lines. So, the ADA gets into all types of areas of making services available to those who have disabilities, who can't access them the way that you and I typically do.

When we start talking about websites, we're talking about those who need help accessing a website where they're not using the traditional keyboard and mouse to interact with the website. So, they're using some type of an assistive technology. Quite often you think of someone who's visually impaired who needs to use some type of software that reads the website to them, or possibly there's some type of magnifier so it's easier to see.

There's also those who can't use a mouse who have to only use a keyboard. So, they have to just use the tab and the arrow keys on a keyboard to navigate through a website, and there's all types of other tools that could be used, but those are some common ones that we get into. So, that's what we're talking about is how do we make websites work better for [00:04:00] people who aren't using that traditional keyboard and mouse navigation tool?

Tim Curtis: It's sort of a point of vulnerability for businesses. Oftentimes the people that are working on the sites, obviously, you know, they're largely not visually impaired or they're not hearing impaired. What I have noticed in the issue with the ADA compliance is as we've certainly ushered into 15 years of much more legislation pointed at addressing these types of issues, the lawsuits have come alongside. There's been so much activity on this front, but there's not a lot of conversation about it and that's what worries me is it is a vulnerability and clients are beginning to get letters for lawsuits and to settle and they just didn't see it coming. Even though people have been talking about this issue for years. What do we have to do to finally, really get people to engage on an issue like this?

Greg Bray: It's interesting that the clients that we talk to or we try to inform about it. They're like, oh, that's nice until either one, they get a letter, or they [00:05:00] know somebody who got a letter. The lucky ones are the ones who know somebody who got a letter. The ones who get a letter, it's kind of like too late. So, the lucky ones have a friend who got a letter or someone in one of their business groups somehow, or whatever that they heard about.

So, they suddenly wake up and realize the risk and start doing some research and paying attention. You know, we've been trying to kind of raise the flag and make people more aware as part of our proposals and things along those lines, but it seems a little abstract to most people, I guess. Until they get that unfortunate letter from an attorney that says, hey, we've got an issue we need to talk about.

Tim Curtis: What's the risk? I mean, obviously getting the letter, but aren't you ignoring a percentage of the population if you're not addressing this, beyond the legal, right? There's a business risk in that you're underserving a community.

Greg Bray: Yeah. This definitely gets people's attention because of the legal risks and the costs that come with that, but the reality is that there's a huge population that actually has challenges accessing websites, and their customers or potential customers that you can [00:06:00] serve. Especially as you look at some of these things that we don't necessarily view as disabilities, but just visual impairment increases with age for a lot of us.

Tim Curtis: It's true.

Greg Bray: I've got the bifocals now, right. My optometrist says that you know, they're just going to keep getting worse. It's the kind of thing where being able to allow your potential customers to interact with your business online is a business opportunity, right? Some people estimate that as much as 30% of the population has some type of challenge that can get in the way of a typical interaction. We all know too that attention spans are short, and if things don't work well and they can't find what they need quickly and easily, they move on to the next site.

Tim Curtis: Move on.

Greg Bray: They're gone. So, if that's a barrier to 20, 30% of your potential audience, that seems like something worth paying attention to from a business opportunity standpoint as well.

Erik Martinez: So Greg, how is this being measured or how do you know you're compliant or not compliant? I have some clients who've been sued. I've had some [00:07:00] clients who have settled some of their lawsuits as part of getting sued. Who determines what this thing is?

Greg Bray: I guess just to fully disclaim everything, right? I am not an attorney. Okay. So, and I don't play one on TV either, right? So, there's what I've learned and understand and researched on this. So, this is one of the big challenges is the definitions are fuzzy with all of it. There are some parts and pieces of it that are not, but from a legal standpoint, the definition is still really fuzzy.

So, in the general world, there is a set of guidelines for website accessibility that have been created by the World Wide Web Consortium. They're called the Website Accessibility Guidelines, and these guidelines have been around for a long time. They go back to 2006 or seven, I believe. I don't have the dates right in front of me.

They talk about technical things, about how you code a website in order to address some of these things and there was an update that came out in 2018. So, it had been like over 10 years since these things had really even been [00:08:00] updated and these updates addressed some mobile issues and some video-related issues, but a lot of the core had been there for a long time.

So, these guidelines have three different levels of measurement called A, AA, and AAA. Really exciting names there. Most of the time people are targeting that AA level of the guidelines. AAA has some things in it that are kind of future-looking and may not be possible for a lot of content.

So, when we really talk about that idea is we're talking about these web accessibility guidelines in this AA range is usually what we see referenced in some of the legal terms. There are several challenges that come with this and the way it's measured. First of all, the guidelines are driven at a page level. So, a given web page can be measured for these. It's not really designed at a site level. So, when you think about, from a legal standpoint, well, if I have, let's just say [00:09:00] ten pages on a website, nine of them are fine, and one of them is not. Right? Is that good enough to not get sued? Undefined. Unknown at this point.

For example, one of the guidelines is that with a video, you should have closed captioning on that video so that someone without hearing is able to consume that content. All right. So, I have 10 videos on my website. Nine of them have closed captioning and I miss one and I leave one-off. Is that going to get me sued or not? That is undefined. So, from a legal standpoint, there's a lot of fuzziness about quote-unquote, what's good enough?

The next challenge is that there is a timing element, right? I measured it today. Well, then you update the site tomorrow with new content. Maybe you load that new video, right? How long is that kind of measurement good for? That's a challenge in all of this because you're reviewing it at a moment in time, but your website, ideally, is constantly evolving and changing. So, that's another challenge [00:10:00] that comes with it.

Finally, there's some subjectivity to it. So, as an example, one of the guidelines is that all your images should have alt tags or alternative texts that describe the image. Well, I can have alternative texts that has a value and it can be totally not useful. Say I've got a picture of a product. We'll call it a camera. One alt tag could just be camera. Another one could be, you know, the Sure Shot 5,100 model version, you know, whatever that tells me a lot more about what that product is.

Well, technically, as long as it just has something in the field, you pass the guidelines, but are you actually serving the customer or the site visitor effectively with what that content actually is? Well, that's pretty subjective as to what's good enough in that standpoint. So, those are just some of the challenges in measuring this, and I got a little long-winded there, Erik. Sorry, but it really is frustrating right now that these guidelines are not a little more [00:11:00] specific, especially when people are using them from a legal standpoint.

Tim Curtis: Think about, you know, accessible.com, which I know a lot of people use for sort of compliance help. They had some really interesting statistics that when you roll up all the websites and you roll up, you know, some of the examples that you gave in terms of inaccessibility, 98% of websites, they're reporting, are inaccessible. In other words, they have inaccessible elements of them. That's 2%, right? Two percent have it. Three hundred increase in lawsuits since 2018 alone. The number that really somewhat stuck out to me was the 20% of the population has a disability. You know you talked about, as we age, we do sometimes, we lose our sight, we lose our hearing, or at least they're not what they once were and they're classified as impaired.

We're talking about an issue here that's pretty broad and it's not necessarily something that is very specific to a certain type of use case. To me, that's where the risk comes in is it's a very broad brush stroke on what has to be done. Surely this can't be, you [00:12:00] know, a website accessibility audit, or a standards review, that can't be a one-time site update. That's gotta be something else. You've got to bake that into a process. What do you think?

Greg Bray: I do believe that to truly make accessibility work, it has to become part of your process, part of your culture even.

So, you think about just the process of adding, say a new article to a website on a blog or a new product to a catalog that has to include some accessibility checks or QA pieces now, into it. Again, I use the example of a video that needs closed captioning. Who is going to make sure that video has closed captioning? Who's going to write the closed captioning? There's some AI tools that can help you with that, but you still need to review those, you know, to make sure it's usable and actually makes sense when someone's trying to read it and consume that content.

Those types of things become part of your content management process outside of the overall site scanning and making sure that the [00:13:00] development team when they launch some new update or maybe you do an entire refresh of a site, that accessibility is part of that process as well.

The downside of that is, yeah, it costs more, right? You're adding extra steps. You're adding extra effort. There's more hours there that have to be worked. Especially if you find something has to be remediated, but in order to do this well, that's what it really comes down to is including that as part of the process and even kind of your culture. Hey, we're going to pay attention to this. This is something that's not just a one-time check, but rather something that we look at going forward as part of our internet activity.

Tim Curtis: The more time marches on, and one of the reasons that we formulated this podcast is the complexities involved in everything related to Ecommerce. It's not getting easier. You mentioned AI and the need for, in a situation with AI, the need to check the AI, because I think we've all seen closed caption videos that were run through some sort of an AI tool, and the output wasn't validated against the actual content. So, [00:14:00] that's more of a manual process, right?

You're talking now about the necessity of creating kind of that ongoing process or business rules by which you're evaluating site build, site refreshes, content that's coming in. Have we checked all the boxes? I think those are the kinds of things that are now resting on the Ecommerce area of brands that it just didn't use to exist. So, the complication of these things continues to get more and more, but it's got to happen. So, I think sometimes, you know, people are frustrated about the legal issues and always feeling like, you know, there's a target on your back.

The flip side of that is there's a huge percentage of the population when you look at it at, 20%, that's a big number that could potentially be unable to be served in one form or fashion. So, it's a big issue, and it's something that we obviously have to think through. When people come to you, Greg, and they are approaching this ADA compliance issue, whether it's ADA or WAG or whatever, are they just trying to avoid the [00:15:00] legal issues being served, and how do you even respond to that? I'm not even sure if a question comes like that, how you would even respond.

Greg Bray: I do think that most of the people that we talk to have become aware of it because of the legal risk. That's what motivates the initial conversation and there's frustration around that because they want to say, what do I need to do to not get sued? That's a fair business question, right? As a business owner, I want to make sure that I protect my business from something there and unfortunately, there's not a clear do A, B, and C and you're good type of thing. Right? There are things we can do to reduce the lawsuits.

The other frustration that comes from a legal standpoint is some of these lawsuits, frankly, are predatory in nature, right? These are folks that are out there, some attorneys trying to make a buck. Now, I'm not saying that all of them are, and I think even those have helped raise awareness of the issue. Fortunately, there's some things happening in the last, you know, six to twelve months that are helping with some of the predatory nature of some of that. We can dive into that a little bit, if [00:16:00] it makes sense in a second.

Most of them start with a, what do I have to do to not get sued, and then we try to say, you know, there is opportunity here to improve your accessibility to your customers and get more customers, but that honestly seems to be, most people kind of stop at that, I want to do just enough to make sure I don't have some of these errors.

So, a difference in that would be okay, a scanner cannot recognize every possible accessibility issue. There's some estimates, 25, 30% of actual issues can be identified by technology. The rest of them require more of a person to actually sit there and go, okay, if I sit there and listen to the site through a screen reader, does it make sense? A scanner can't tell you that. Can I actually understand what the message of the page is and what they want me to do next and navigate it?

Well, that's a whole nother level of investment and time and energy, and I'll be honest, most of our clients aren't there yet. They just want [00:17:00] the errors on the scanner to go away, and honestly, that's what a lot of the predatory lawyers seem to be doing is just running scanners and the reason why it's cause it's subjective, right? A scanner is very easy to say you have errors or you don't, and so you're either good or you're not, right? If this page makes sense or not listening to it read to me is much more subjective and not just a clearly objective measurement.

Erik Martinez: How do people keep up with this because I think there's this notion out there as Blue Tangerine, I want to build a new website with you and in my contract, I want you to guarantee that it's ADA compliant. What's the response how do we guide customers through that discussion?

Greg Bray: It's a fair question, and again, if I haven't hinted yet that there's fuzziness around this. Hopefully, that message is coming through. So, can we, as a web development company, guarantee that? No, we can't, and there's a couple of reasons why. Number one, because the definitions aren't firm.

Number [00:18:00] two, is because this moment in time, right? Even if we have something on launch day that is, it's going to change tomorrow because of added content or whatnot. So, we can't guarantee it. What we can guarantee is that we will build in the infrastructure in the code the way that it's supposed to be there. Don't know how technical we want to get here, but as far as having the different sections of the site that are labeled properly within the code.

We can guarantee that we don't have the errors. Things like missing alt tags, which is one of the biggest errors out there and something that's so basic and simple, and you want to do it for your SEO anyway. We can guarantee that we don't have those kinds of errors.

We can guarantee that we don't have color contrast issues in the design. You know, you make sure that the designers are being trained on that, but sometimes we get designs from other agencies where they haven't paid attention to those kinds of things. So, we can guarantee that level, but can we guarantee that you will never get sued? No. Can we guarantee that it will always maintain accessibility? No, we [00:19:00] can't, but we can help you monitor that and help you address issues when they pop up.

Erik Martinez: I think that's a really critical point because I think everybody assumes that there's a technological solution to this. From what I hear you saying, and from my own experience, there's a very human part of this puzzle. The tools and the scanners can help identify and tell you what to fix to a certain extent, but you need constant human interaction with the website in order to maintain some level of standard. The problem is like you said, there is no standard and these lawsuits can come from anywhere. So, if you have a client that comes to you and says, hey, you know, I think my website is potentially not accessible. I had a friend who got sued. What can I do to protect myself? What are the first steps that you're going to tell them to do?

Greg Bray: The first step really is just the simple audit. I mean, there's some tools that are [00:20:00] free, some browser plugins. We like one that's called the WAVE Plugin that you can install in Chrome or Firefox, and it will simply run a scan of your page and show you the errors, right? So, you can see pretty quick, do I have one error or a thousand really, really fast.

There's also some tools in Chrome, developer tools that will run a scan on a page and give you a little more detail behind the scenes of how a page is structured. Now, granted one page, doesn't tell you how the whole site plays out, right? It also doesn't tell you things like, can I tab through navigation? Quite often drop-down menus, if they haven't been designed properly, can completely fail with keyboard navigation, you know, and the ability to access all those options.

Some of the things that you need to do is the ability to skip navigation. Imagine on some large Ecommerce site that has all these categories and subcategories in the main nav that's all these dropdowns. Really easy when you're doing a mouse, but if you have to tab through every one of those every time you go through a page to get to the content, [00:21:00] having a skip navigation link that's hidden, that's available for a screen reader or for a keyboard navigator to be able to jump over all those, is a huge piece of some of these things that we look for just out of the box. So, we can see some of these common missing things really quickly without even diving into lots of pages.

Erik Martinez: Do you see that there's layers of remediation or layers of fixing on the the website. So, give you an example. I was talking to a client who is working on a new website, and just during our conversation, I said, hey, have you guys done any kind of website scan to check and see if your new site's going to be compliant when you launch, and there, somewhere between five and six weeks away from launch at the time we had our conversation.

He goes, no. What do I do? We ran some scans for him and he goes, okay, so whose responsibility is it now to make sure that the stuff is ready for [00:22:00] launch or at least reasonably after launch so that, you know, when a new site comes up, that we're not subjecting ourselves to potential lawsuit? How difficult is it to fix some of these things?

There's services out there who claim to provide overlays, basically, a technological solution to kinda give an ADA or a WCAG compliant view of the site to the world, but their website doesn't really change. There's another group out there who say, hey, we can come in and we can make a bunch of changes into the presentation layer and fix those, but it seems like those things are still band-aids versus a more comprehensive solution.

Greg Bray: I'm of the opinion that done right, it should be done at the core code, not layered on top. Now, I'm a developer. So, I understand why these tools have been created because people are trying to address issues where maybe they don't have access to the raw code.[00:23:00] Especially if it's a third-party platform that you're building on top of that you don't have the ability to go change something like that.

I certainly can't speak to every tool out there and whether it really works or not, but in general, some of the ones that layer on top, what they're doing is they're running scripts in the browser after the page loads and then trying to address some of those issues. Sometimes those things execute at a layer where a scanner wouldn't see it. You know, the idea that if you're trying to avoid that lawsuit and the attorney is using a scanner, you need to use the same tools that the attorney is using and get the same result that they are to see the same view that they see.

It's similar to the way that, you know, Google spiders a site and sometimes some of those script actions aren't picked up from an SEO perspective. I mean, Google is getting better and better at processing browser-side scripting, but at the same time, there are things that Google will see in the code that they won't see that you change, you know, at runtime on the browser, and it's the same type of thing with these types [00:24:00] of accessibility tools as well.

Erik Martinez: So, but in terms of, you know, a quick remediation strategy, is it okay to work on some of that top-level stuff while you formulate a deeper plan with your website developer to say, hey, we need to fix these core things in the code?

Now, I can tell you, having recently worked with some clients who were shopping for new platforms that the platforms will all say, we're natively ADA compliant. How do we even prove that? How do you even go about proving that because, as you said, once the site's launched all the variables change, right?

Greg Bray: Hopefully, those conversations mean something to them when they actually claim that. What we see in a lot of sites today, the way they're built is there's a lot of common elements in a site that are put together. For example, your header and your navigation typically are built in one place and then they carry through every page of the site.

So, if you have an issue with your header and your navigation, you should be able to fix that in one place, [00:25:00] and it carry through, that fix carries through to every page of the site, and so you've got kind of that overarching framework of header and footer and navigation and things that, that when you have errors in those elements, they will show up on every page.

So, if you can get them fixed, you can fix a lot of things throughout a site. You'll also see commonalities in, for example, a product page will have a consistent layout for every product, and if there's an issue in that product page layout or the way it's structured, there's probably just one place to fix that and it will carry through to every product page. So, when you look at the total errors across a large site like that, you can really bring those counts way down by fixing the template, if you will, or the framework around it.

So, being able to recognize that, gosh, if we get the header, footer, navigation, and some of these general template level type things fixed, we fix a large majority of the errors. Then we start to get more specific into more of a page-by-page look [00:26:00] of what's missing? Oh, well, there's this video that doesn't have closed captioning or whatever. That takes a deeper level of review and remediation. So, certainly, the place to start is at those common elements, and make sure you've got that overall framework happy that covers every page of the site.

Erik Martinez: So, Greg, in the people you've talked to, and I know you've talked to some attorneys who kind of specialize in this, is there a number of errors that will generally prevent the predatory lawsuit?

Greg Bray: You know, I haven't seen anything that gets into the number standpoint. I think though, just from a what would be worth my time, so to speak as an attorney. Trying to think from their perspective. You know, when you see somebody is paying attention and trying and has a couple of errors still that aren't resolved. Then the idea is, well, probably not worth my time, but if you see somebody that's just blatantly not trying, because every image is missing an [00:27:00] alt tag, or there's just contrast issues everywhere in the design. There's no accessibility statement linked on the site, all these types of things that just say we don't even care. We're not even paying attention. That to me would be, oh, here's one that, that I might want to talk to.

Now again, there's some things happening that are helping reduce some of the predatory nature. That doesn't mean that we can't ignore this because the legal precedent is now there, that websites have to pay attention to this. We can't just say it doesn't apply anymore, but the ability for some of these repeat people that are just bringing the same plaintiff and the same law firm doing lots and lots of these suits indiscriminately, that seems to be slowing down with some of the rulings that have been happening.

Tim Curtis: Going back a little bit to what Erik was talking about and getting your web developer to begin to focus on, you know, some of the issues or the alerts may be that you're seeing, and one of the funniest lines, I'll never forget it. It was a brand that said it was like an SOS. It was help. We ran Screaming Frog, and everything is screaming. You know, and [00:28:00] so when you use a lot of these extensions to do that initial scan of the site, you do get a lot of that back.

It's sort of, first off, you know, taking a deep breath and then addressing with someone who can help you address it, here are the things that we need to solve for, and again, a lot of it probably is just, as you said, missing tags, or missing alt text or something that was just not put in the first part, but it's a bit daunting when you get that first read. If it was not set up correctly, you're going to have a lot of alerts coming back and that's no fun.

Greg Bray: I do think that this needs to be in the conversation when you are starting a project, not the day before launch. That is not the time to be talking about, oh, by the way, we better run an accessibility scan on the site because we're launching tomorrow. That is not where this belongs. This needs to be a requirement upfront. It needs to be looked at, both from a design standpoint because I think color contrast issues for those who are colorblind is one that probably is in the top area of offenses out there. Right?

When you have [00:29:00] certain color text on certain color backgrounds, people can't read it. Designers don't like to be restricted in all their nuances, right? They love their colors and they want to work with them, and we love our designers, but we got to pay attention to this. You should never bring me proof of a draft design that has color contrast issues. That's where it should be checked. Not, again, the day before launch, where somebody runs a scan for the first time.

Tim Curtis: It's sort of like building a site, getting ready to launch it. Oh, you know, let's do an SEO audit and see what SEO pieces we're missing. It just doesn't make any sense. Nobody would do that.

Erik Martinez: I do that all the time,

Tim Curtis: Yeah. Right.

Erik Martinez: But it's mostly for fun.

Tim Curtis: Exactly. It's all inherent in the build. It's dizzying to think about all the things that you have to think about, but if you tackle it and make it a part of the process from the beginning, then it's manageable and it ought not be overwhelming.

Greg Bray: And if you've got a dev partner who understands this, then building it in from the beginning is much less expensive than retrofitting after the fact. So, you want to make sure [00:30:00] that's happening upfront and where you don't have to fix things. We're just building it right the first time. It's just like any other type of construction project, right? Moving a wall after the house is built is a lot harder than moving it on the architect's drawings.

Tim Curtis: Do you recommend then that someone start by downloading one of these extensions and taking a run at it and seeing what comes back? Do you recommend they engage someone for a site accessibility audit? What does this process look like? How do people get started? How do they manage it to alleviate any issues?

Greg Bray: Yeah, if you're just trying to figure out quick, do I even need to worry about this? Getting one of these little plug-in tools that's free, and we can probably drop a link in your show notes with where to find that. Personally, I like the WAVE tool. It's free. It's pretty easy to use. It installs a little button in the browser toolbar and then opens a little side panel with a report that's generated on the page. It doesn't take very long to do that on a handful of key pages on your site and just kind of get a gut level of are these numbers in the single digits [00:31:00] or the triple digits on errors and being able to understand what's going on.

Now granted, how to resolve those and how all errors are not created equal and the complexity of fixing them, and that requires a little more technical understanding of, is this a hard thing to fix or an easy thing to fix, but just getting that general idea of error count gives you somewhere to go.

The other place to really start is just that business decision of are we going to care or not? Are we going to roll the dice and take our chances and just keep doing what we're doing? Or are we going to say, you know what? We're going to pay attention to this? Not just because we're trying to avoid a lawsuit, but because we care about our customers and reaching them, and frankly, it'll help your SEO too. We didn't really talk about that but there's a lot of overlap in some of these improvements that help SEO because Google has to parse a site, very similar fashion to how a screen reader parses a site and so all of those guides that describe content and things that describe your images or the captions on the videos and all those things give Google more [00:32:00] to work with too, so there's a benefit from that standpoint as well.

Erik Martinez: So, to put an exclamation point on this, let's talk a little bit about the financial risk associated with getting sued. We've had some clients that have been sued. Are you familiar with what numbers they're getting talked to about in some of these demand letters that are going out?

Greg Bray: So, from a pure legal standpoint at the federal level, my understanding is there's not an actual fine or something like that, that comes in from a penalty that you have to pay the government for example, if you got sued. Of course, you got to pay attorneys' fees, both the plaintiffs and your own attorneys. You're going to have to pay potentially some type of damage or settlement fee if you don't want to go to trial if you're trying to settle that. There's going to be some fee there. I don't know that I've got firm dollar amounts. I think it can range widely based on the type of business and kind of what they think they can get out of [00:33:00] somebody.

There are state-level risks as well. California wins a lot of awards for extra regulations. No offense to our California listeners. So, there are fines at the state level in California. You know, when you look at some of the counts on lawsuits, typically they're federal lawsuits. New York, of course, is leading the way in count of lawsuits. California is second. So, there are some state laws that add additional actual fines and penalties as well, and then, of course, you've got the cost of fixing it all.

So, even if all of this happens, you said you got to have some technical investment to actually address it and depending on what the settlement is. Sometimes the settlements require some ongoing monitoring and things as well that you will have to pay for, and sometimes it'll have to be with an independent third party that you're going to have to pay for, some consultant to come in and check it every so often. So, you're going to have some professional service fees that go along with that as well. So, those are some of the risks there, and so it can vary a lot. I mean, it could be 10 grand up to a hundred grand or more. Again, it's gonna depend [00:34:00] partly on what their remediation costs are as well.

Erik Martinez: I think that's a good point. I know that for a particular client that's involved in this right now that I'm aware of, they have been offered a settlement in that $50,000 range, and that does not include the attorneys' fees or any remediation or any of that. The attorneys think they can negotiate that down because this particular lawsuit seems to be of the predatory nature because in this particular filer and this is what I think people need to understand is, there are law firms out there who specialize in doing this and there is a cottage industry out there that is making money on this from both the predatory law firms who are going in and running quick scans and going this is a good candidate. For this particular client, this law firm has filed over a thousand lawsuits since last August.

There's also a cottage industry of people who can [00:35:00] do quick remediation. There are a cottage industry of attorneys who specialize in defending clients against the predatory lawsuits. What was really interesting in this particular case was that the client found out that they were getting sued by one of the remediation firms who has an API into all the courts to see the filings. So, the demand letter hadn't even arrived yet and the client was aware that they were getting sued because this cottage industry exists, and within two or three days of this getting filed, they had numerous remediation firms and law firms reaching out to them saying, how can we help? So, there is real money in this, and there is real cost and expense in trying to sort it all out for our clients.

So, that wasn't really a question. That was more of a statement. Just to put an exclamation point on it. Folks, this [00:36:00] can cost you some severe money and we're all familiar with cases like Target and some really large brands that have had to fight these particular lawsuits off. So Greg, heading towards wrap up, we talked about what is the first step, but I got one kind of geeky technical question cause I've looked at the WAVE tool and I'm not a developer, and I look at it and I go, what the heck is an aria whatever error? If you are not a developer and you're not familiar with these things, I'm presuming you need to go talk to your web developer or to somebody in order to understand what these errors even mean.

Greg Bray: There's definitely a lot of the errors that are very technical and get into exactly how the HTML code is being structured within the site, and again, a lot of these have to do with telling a screen reader software what this piece of code is for, and it's these extra tags that go into [00:37:00] structuring the page, making sure that it's clear that this type of screen reader software can understand and then read it back to someone so it makes sense to them, and it gets into some of the structures too.

Like, quite often, you know, there's a simple heading tag, the H1 tag in HTML, and then there's an H2 and so forth, and it used to be in the day, we started using those before there was good style sheets and things, we'd use those as design elements because we wanted it to be bigger than the other one, and now that kind of carried through. Instead of making sure that we've got the content hierarchy clearly defined because this heading is an H2 and not an H1 because it's not as important as the H1, and the H3 is not as important as the H2, and there's kind of this content hierarchy there.

Well again, Google likes that too. That's going to help Google understand the content as well better, but if you just make them all the same hierarchy, and then just use style sheets to make them look different, that's not really communicating well either, and that's not an area that's going to show up [00:38:00] necessarily on a scan. It may be a warning that you've got duplicates, but there's still elements, here again, to make this really usable require a little bit more than just even running the scanner and getting these errors.

Erik Martinez: So, the conclusion is reach out for some professional help because this is a complicated topic, and if you're not getting some, at least some good advice and guidance on where to start and how to even ask the question of your developer in the right way because not again, not all developers are created equal. Your account managers at the development firms, they may not know anything about this particular topic. So, I think that's a critical point. Greg, as we move to wrap up, are there any last thoughts or recommendations or advice that you'd give the listening audience?

Greg Bray: Don't let this overwhelm you. One step at a time. It's like everything else. You just need to start and you can't protect yourself if you haven't [00:39:00] opened your eyes to the risk. You can't even begin to protect yourself. So, don't just say, oh, that's too hard. Or don't just say, oh, that's just predatory stuff and they're wrong, and so if they sue me, I'm just going to say, no, you're wrong. Well, that's going to cost you a lot of money to say, no, you're wrong, but just one step at a time. Just start with figuring out where are we today and then you can make that plan on how to move forward.

Tim Curtis: What's the best way to get ahold of you, Greg?

Greg Bray: You can reach me at Greg, G R E G@bluetangerine.com. Also out on LinkedIn. There's probably more than one Greg Bray out there, but not too many of us, so you should be able to find me there too.

Tim Curtis: Perfect. Well, thanks for coming on. It's been good to catch up a little bit, talk about the ADA and the impact. It's kind of snuck up on us a little bit in some cases, but it's out there. It's certainly not going to go away anytime soon. Well, this wraps up this edition of the Digital Velocity Podcast. I'm your co-host, Tim Curtis from CohereOne.

Erik Martinez: And I'm Erik Martinez from Blue Tangerine. Thank you.