The Agency Guide to Web Accessibility

Kris Rivenburgh recently published a great piece on Medium about website accessibility. Everyone should read it. Realize though that this piece is directed at businesses — the clients that you build websites for. It doesn’t speak directly to what an agency should consider regarding accessibility under the Americans with Disabilities Act (ADA).

It might help first to understand what is at stake for an agency. If your client gets tagged with an ADA claim, your client may start looking to spread the pain. Most likely, that will come in the form of an indemnification demand to your agency. Your client will argue that since your agency built the website, you should be responsible for remediation costs and any damages that your client has to pay. And as you may have read elsewhere, the dollar amounts in these cases can quickly add up and the businesses being targeted are not necessarily giant institutions.

So, what should an agency do? In most cases, an agency can’t (or at least shouldn’t) guarantee that its work will cause the client to be in compliance with the ADA. The reason is simple: your agency isn’t a law firm and can’t advise a client on how various regulations might apply to them or how to best comply. Moreover, there are technical, functional, and legal barriers to doing so as outlined in the article:

• the development standards (WCAG) are vague and in some cases aspirational
• the development standards are not law
• compliance depends on client choices about content and functionality

Recognizing these barriers, there are a number of things that an agency can do in its contract to address the risk. In particular: 

• An agency’s SOW should exclude regulatory compliance from the scope of work. This applies to ADA as well as requirements relating to things like privacy, security, disclosure, financial. 
• Agencies should avoid representations that Deliverables comply with all applicable laws. It is OK to say that an agency will perform under the agreement in compliance with law. 
• Compliance requirements should be treated as Specifications that are provided by the client. An agency can advise on how to meet WCAG guidelines and the agency will be responsible for building to the Specifications provided by the client, but the client needs to be responsible for making decisions about how and what it needs to do to comply. 
• Limit a client’s remedy for not meeting client-provided Specifications to simply fixing the work (rather than paying damages). 
• Exclude claims resulting from client-provided Specifications from the scope of the agency’s indemnity. 
• An agency should avoid ADA or WCAG compliance exceptions to the limitation of liability clause. 
• Consider obtaining insurance to cover this type of indemnity claim. This would likely come under a technology errors and omissions policy but it may be a rider that has to be separately purchased.

These are the types of provisions that Matchstick is using to address ADA and WCAG issues in the agreements we build for our agency clients. But even having all these contract clauses isn’t a substitute for good communication with your client at the outset of a project as to what your agency can and cannot do regarding ADA and WCAG compliance. Matchstick has worked with a number of agencies about how to have these conversations so that an agency is in the best position to document a proper scope of work and minimize the risk of unmet expectations. If you’d like guidance on how to do this, we’d be happy to help.