Who Wins By Proving You Can Discriminate?

Oct 27 2022

While the Americans with Disabilities Act of 1990 (ADA) and Section 508 do protect disabled individuals from most discrimination on the internet, it does not protect them in every instance or in every municipality.

As we’ve discussed previously, a lack of a national law incorporating a set of compliance standards for web accessibility has made it such that enforcement and adjudication of violations is entirely subjective based upon the locality in which the violation occurs. In some areas of the country, the Courts have aggressively applied universal protections against disability status-based discrimination to digital content, whereas in others, inaccessibility is a violation of the ADA only when a nexus exists between a physical business and the online content with which the user interacts (or rather, is prohibited from doing so). As such, there are some instances wherein Courts will permit, or allow discrimination based on disability in digital content.

None of this article is meant to be legal advice and should not be taken as such.

When Is Inaccessible Content Not A Violation of the ADA?

We should be clear; no organization should strive to produce inaccessible content. However, some jurisdictions do not consider inaccessible content to be de facto violations of the ADA, as not all web content is protected. In these jurisdictions, jurists have concluded that because the statutory language of the ADA makes no reference to digital content, only content that is connected to the individual user’s ability to engage with a physical business or performs the same activities as said physical business is protected by anti-discrimination provisions.

Though You Might Be Allowed to Discriminate, Should You?

Compliance with the law isn’t the only reason a business should strive to be inclusive: it’s good business practice. Disabled individuals are amongst the most loyal consumers to businesses that demonstrate an effort to support their communities. The market power of the disabled is considerable and has been known to make a difference in the bottom line for a business. According to a 2018 American Institutes for Research (air) report, “the total disposable incomes (post-tax) for working-age individuals with disabilities is nearly $500 billion.” 1 [1]$500 billion is similar in the market power to other major minority groups and should be considered by business owners when adjusting their business practices to tailor the needs of these communities. With disabled individuals being such a large target demographic, engineering business practices that enable the inclusion of these individuals into your consumers best serves your financial interests.

Inability to access online platforms, for disabled users, results in a quantifiable loss of income to your business. According to a 2019 report on “people with disabilities found only about 8% of people who face an "access issue" online would choose to bring it up with a business. Close to 70% of people in this situation will click away from the website.” In the United Kingdom, it was found that “75% of disabled people and their families have walked away from a service provider because of poor disability awareness at a cost of £1.8bn to UK businesses every month.”2 Failure provide equality in access (be inclusive), alienates the disabled population and removes them from your consumer base. If an organization chose to be inclusive, they would be able to provide services that would more universally make them more appealing to consumers. As many features utilized to make a website more inclusive to disabled users benefit members of other demographic groups, the benefits would trickle into other target audiences. 80% of those who use the closed captioning function on videos (as suggested with web inclusivity standards) are not auditorily disabled.3 Providing close captioning to promotional videos can both entice disabled customers and the elderly you might have otherwise lost. Providing accommodations on your platforms will result in a more inclusive environment for customers of all demographics and boost your company’s bottom line. The effects also generate a secondary benefit in supporting the image of your company, enticing individuals who make consumer behavior decisions based on the social exercises of a business.

Why Does Being Accessible Serve You Better?

Companies are incentivized to be accessible both monetarily and socially. Brand reputation plays a pivotal role in consumer behavior and employment. Entities that demonstrate themselves to be more accessible tend to have a better reputation that those who are not. Being accessible is a way to demonstrate a company’s socially progressive stance towards disabled individuals. As previously mentioned, consumers in today’s market have a predilection for socially conscious businesses and will go out of their way to remain customers of those who demonstrate such. Having a better brand reputation will better serve your company’s image and its bottom line.

  1. Admin, “Accessibility Is Smart Business – the Hidden Size and Purchasing Power of People with Disabilities,” Accessly, October 27, 2021, https://accessly.io/why-accessibility-smart-business-hidden-size-purchasing-power-people-with-disabilities/#:~:text=According%20to%20a%202018%20report,they%20hold%20impressive%20buying%20power (opens in a new window)

  2. “The Click-Away Pound Survey 2019,” The Click-Away Pound Survey - Why Business Disability Forum is involved, accessed June 6, 2022, https://www.clickawaypound.com/bdf.html (opens in a new window)

  3. https://www.3playmedia.com/accessibility-online-video-stats/ (opens in a new window) 

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