Inaccessible Third-party Content and Code — Why it is Important, and How to Address it

Cardboard with post-it note — Time for New Content

In the United States, various parts of the federal government have made it painfully and consistently clear in its rulings that the federal government doesn’t care who created inaccessible content or code, if it’s on your site, then the site owner is responsible for making it accessible.

The History

H&R Block

Peapod

The only “out” provided to Peapod by the DoJ was if making the content accessible “would fundamentally alter the nature of its goods and services or would result in an undue burden.” Most US courts look not at departmental budgets, but the assets of an entire company in determining whether something constitutes an “undue burden.” It is impossible to see how the inexpensive cost associated with the closed captioning example above would ever satisfy even the most basic undue burden analysis. Likewise, adding closed captioning to a video that wasn’t captioned by the vendor hardly constitutes a fundamental alteration of goods and services.

Scandinavian Airlines

Why?

Assume that a company comes under the ADA as a public accommodation. If the US Government’s enforcement divisions exempted content and behavior created by third parties, the company that is the public accommodation could conceivably outsource the entire content and creation of a website and not experience any consequences if any of the resulting site were inaccessible. This result would be at complete cross-purposes to the ADA itself. Companies choose who they partner with, and voluntarily enter into contracts. If companies don’t choose carefully, their partner’s mistakes can end up getting imputed to them.

What to Do

1) Include the level of accessibility required in your contracts

Every contract for goods and services should include a clause regarding the chosen accessibility standard. Don’t be surprised to hear a vendor say that they’ve never been asked to do this before, or that the ADA doesn’t apply to them, especially if it is a small vendor or one based outside of the US. A smaller (or foreign) company may not come directly under the ADA as a public accommodation, but that doesn’t mean they get to pass on their exemption to your company. Rather, it’s the reverse: If your company comes under the ADA as a public accommodation, your obligation to be accessible needs to be passed on to all your vendors regardless of where they are physically located.

2) Require remediation plus some other penalty for lack of compliance (or bonus for compliance, depending on whether your prefer carrots or sticks)

Your vendor will not have any skin in the game unless there is some type of penalty for lack of compliance. Learning to be accessible requires an upfront investment of time and money. Vendors will not be internally motivated to make that investment (especially if the ADA doesn’t apply to them directly) there needs to be external motivation for making the investment. I have been in environments where that motivation did not exist, and it is a constant, frustrating vicious circle of:

- Vendor doesn’t train its staff, or uses subcontractors who don’t train

- Vendor delivers non-compliant content/code

- The procuring company effectively acts as external QA for the vendor, reports defects to the vendor

- Time elapses. Eventually the vendor submits fixes

- Acquiring company must test again because the vendor isn’t trustworthy-

- Eventually the vendor is replaced, and you start over with a new vendor

I could write an entire long article on how this is a huge waste of time and resources. Building in accessibility from the beginning is the only way to do it correctly, and there either needs to be a carrot or a stick in the contract to nudge the vendor to making the necessary changes in their processes or training to deliver accessible code and content.

3) Specify a deadline for remediation for each type of inaccessible issue

If your vendor is creating content that will only be live for three weeks, giving them four weeks to fix it (assuming you don’t catch the issue until production) means accessible content will never go live. Keep this in mind when you are working through how much time to allow the vendor to remediate inaccessible content or code.

4) Make sure the contract addresses vendor remediation costs

Who wants to pay a vendor for creating inaccessible material and pay them again to fix it, while you are incurring the QA and auditing costs and potential schedule delays? That is basically the opposite of a penalty, that’s an incentive for your vendor to completely ignore accessibility, even if it is in the contract. Yet, if your contract does not address that remediation needs to be performed entirely at the vendor’s expense, that is exactly what may happen.

Conclusion

Blogger, disability advocate, nerd. Bringing the fire on ableism. A11y Architect @ VMware. Wheelchair user w/ a deaf daughter. CS, Law, and Business background

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