Technology Vendor Contracts and Accessibility: What Every Business Lawyer Should Know

6 Min Read By: Lainey Feingold, Eve Hill

IN BRIEF

  • A good starting point for businesses in achieving digital accessibility is to implement basic smart practices in vendor contracts.
  • This begins with a well-developed accessibility policy.
  • From there, businesses should carefully craft their RFPs and include accessibility as a contract term.

What Is Digital Accessibility?

Digital accessibility is about the ability of people with disabilities to find, read, navigate, interact with, and create digital content. It is about people who use computers without being able to see a screen or hold a mouse, and it is about students who watch videos for school and pleasure who can’t hear or understand the audio.

Digital accessibility is achieved by meeting well-established and internationally accepted design standards and maintaining a culture of accessibility in business policies and processes.

Accessibility can be a team motivator, a source of creativity, and a business differentiator. It benefits not just people with disabilities, but aging boomers and anyone who prefers technology that is easy to navigate and use. In addition, digital accessibility is a civil right. Why? Because without it, people with disabilities are excluded from government services, employment, education, private sector offerings, and a host of other activities that happen online.

The Americans with Disabilities Act (ADA) has required digital accessibility for decades. There has recently been an increase in lawsuits and administrative complaints about digital accessibility in virtually every sector of the economy. For these reasons, digital accessibility is something every business lawyer should understand.

This article cannot cover everything a lawyer must know to advise businesses about accessible technology, but a good starting point is vendor contracts. Even companies with a commitment to digital inclusion can run into trouble if they purchase inaccessible content or technology.

In a recent accessibility lawsuit in Florida, a plaintiff sued both the website owner and the vendor who “designed and hosted” the website. Gil v. Sabre Technologies, Inc. et al., 1:18-cv-20156 (S.D. Fla. 2018). In addition, a federal judge ruled in 2017 that a grocery chain’s inaccessible website violated the ADA. The decision, now on appeal, ordered Winn-Dixie to “require any third party vendors who participate on its website to be fully accessible to the disabled.” Gil v. Winn-Dixie Stores, Inc., 242 F. Supp. 3d 1315 (S.D. Fla. 2017).

The risk of inaccessible products and ADA lawsuits can be minimized by implementing basic smart practices in vendor contracts. We welcome feedback about other practices that have helped your clients stay ahead of the legal curve and offer technology that is available to everyone.

Smart Practices for Addressing Accessibility in Vendor Contracts

Adopt an Accessibility Policy

Before asking vendors to deliver accessible digital products, an organization needs its own accessibility policy. At a minimum, the policy should state the organization’s commitment to digital accessibility and the standard for accessibility. The most commonly used standard is the Web Content Accessibility Guidelines 2.0 Level AA.

Other policies that build a strong accessibility foundation include putting accessibility in performance evaluations to hold employees accountable, ensuring all technologies (not just web) are covered, developing an effective training program, and having an efficient way for customers, employees, etc. to report barriers (and to fix them).

Include Accessibility Requirements in Requests for Proposals

Issuing an RFP for technology? Accessibility requirements must be included. Attach the organization’s accessibility policy, and be specific. Don’t just say the technology will “meet federal requirements.” List federal accessibility laws, such as the ADA and section 508 (federal procurement). For web content, specifically identify the applicable accessibility standard, e.g., WCAG 2.0 AA. In addition, list some disabilities as examples to ensure vendors know what is expected. A good resource is WebAIM’s People with Disabilities on the Web.

State the Requirements for Evaluating Accessibility

It is not enough to require accessibility. RFPs should specify how accessibility will be evaluated. Resources include the Web Accessibility Initiative’s Web Accessibility Evaluations Tools List and guidance for selecting tools. If a business is not sure what testing tool is best, ask what tool the vendor uses. The answer (or lack of one) will speak volumes.

Remember that 100-percent automatic (computerized) testing is not sufficient. RFPs should include requirements for user testing and require vendors to include disabled people in product testing. If possible, specify at what points in the development process disabled people should evaluate the product. Having users review a product early in the development cycle avoids costly fixes later. A review before delivery catches last-minute errors.

Evaluate Proposals for Accessibility

Insist that vendors provide accessibility information and be sure to read it and ask questions. Understand exactly what the vendor will do to ensure accessibility. In 2018, any vendor that says they’ve never worked with accessibility principles should be passed over. Vendors who provide seemingly strong accessibility answers should be questioned the same way vendors are evaluated for security and privacy issues. In other words, take it seriously and be specific. How do they know their product is accessible? What tests and standards did they use? Will they share test results?

Review VPATs with Care

Some vendors offer Voluntary Product Accessibility Templates (VPATs). If one is offered, it is important to read it and understand what it means. A vendor often will not answer the actual question for an accessibility standard or will give an unacceptable answer. For example, Section 508 requires that “At least one mode of operation . . . that does not require user vision shall be provided. . . .” The answer, “Support Line is available,” means the product is not accessible, and customers who can’t use the product online are expected to call someone who may or may not be able to help. Remember that a VPAT that says a product is “partially compliant” means it is “not compliant” in some respect. It’s up to your client to find out what that means and how to address it for their customers.

Put Accessibility in the Contract

Once a vendor is identified that can meet other criteria and deliver an accessible product, accessibility details must be spelled out. To avoid lawsuits and ensure all customers can use the business’s technology, make accessibility a contract term. Some specifics include the following:

  • state the accessibility standard (e.g., WCAG 2.0 Level AA);
  • state how and when the technology will be tested;
  • hold the vendor responsible if the product turns out not to be accessible by requiring the vendor to remediate barriers immediately, deliver a new product, return money paid, pay any damages and attorney’s fees incurred by the business, and/or pay any damages and fees the business must pay because of a complaint;
  • allow the business to do its own testing upon delivery, and require the vendor to remediate any identified accessibility barriers; and
  • given that accessibility defects may not be immediately apparent, specify vendor responsibility whenever a barrier needs remediation.
After the Ink Is Dried

Accessibility is not a “one and done” issue. It must be maintained and periodically evaluated. When problems arise, an efficient remediation system must be in place. Once a vendor has delivered an accessible product, here are some steps to prevent problems down the road:

  • when a customer or employee raises an accessibility problem, get the problem into the right hands and fix it as soon as possible;
  • train all customer-facing staff about the company’s accessibility policy and how to escalate to the appropriate person;
  • build a monitoring program that suits the size of the company to ensure accessibility is maintained, and train content creators (anyone who can post to the company’s website) to recognize, and use content management systems that flag, accessibility errors.

Finally, don’t keep a business’s accessibility commitment in the closet. Accessibility is a brand differentiator and a way to bring in more customers both with and without disabilities. Be explicit and transparent about accessibility efforts. It will make technology more usable for everyone.

ABOUT THE AUTHORS

Baltimore, MD

Eve Hill

Eve Hill is one of the nation’s leading disability and civil rights attorneys. She is co-leads Inclusivity Strategic Consulting at Brown, Goldstein & Levy, LLP. She previously…

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