The ADA lawsuit settlement involving an accessibility overlay

Eyebobs’ is an online glasses company that was sued for not meeting accessibility requirements by a blind plaintiff in January 2021. “Accessibility” refers to whether or not something is usable by an individual with a disability. The general standard used globally is WCAG

Like hundreds of thousands of websites, the Eyebobs’ website used an accessibility overlay to attempt to mitigate its known inaccessibility. Accessibility overlays are tools that attempt to make websites accessible. However, overlays (also known as tools, plugins, and widgets) force users with disabilities to use the assistive technology provided by the overlay rather than the assistive technology that the user may prefer to use that might be customized for their unique needs. Overlays do not make websites accessible, and can actually create accessibility problems for users.

What distinguished this case from the almost 200 other accessibility lawsuits involving overlays was the participation of Karl Groves as an expert witness, who wrote (and made public) this 35-page scathing indictment of how inaccessible the Eyebobs’ website was despite using a well-known accessibility overlay.

Karl is also responsible for creating overlayfactsheet.com, a website where over 600 accessibility professionals have signed a pledge which requires in part that the signatory “never advocate, recommend, or integrate an overlay which deceptively markets itself as providing automated compliance with laws or standards.” Note: I am proud to be signatory #38 on overlayfactsheet.com

The Eyebobs’ settlement requires them to make numerous changes to policies, procedures, and personnel to promote the accessibility of its digital properties. I will address each of these changes one by one. All of the statements in the remainder of this article attributed to the overlay companies were copied directly from their respective vendors’ sites on October 17, 2021.

Eyebobs’ Agrees to Create an “Accessibility Coordination Team.”

One of the biggest promises from every accessibility overlay/tool/widget company is that they are “one and done” — you add one line of code linking your website to the overlay. The unstated implication is that little to anything else (depending on the vendor) else is required to make a website compliant. The fact that Eyebobs’ agreed to create an accessibility coordination team is proof that promise is not achievable on its own.

• AudioEye: ADA and WCAG Compliance Plan on Day One.
• Accessibe: Paste a single line of JavaScript code on your website… in up to 48 hours, your website is accessible and compliant.
• Equalweb: Just insert one-line-of-code and we will do the rest!
• Userway: Get compliant & avoid lawsuits with only a single line of code. UserWay’s solutions provide full WCAG & ADA compliance from day one, and every single day thereafter.

If a single line of code worked by itself as well as the overlay companies said it does, why would Eyebobs need to create an accessibility coordination team?

Eyebobs’ Agrees to Perform an Accessibility Audit of their Digital Properties.

Eyebobs’ agreed to add an accessibility consultant to assist them in conducting an accessibility audit of the website and advising them on making the website accessible. The implication here is clear. Use of an overlay:

1. Does not and cannot substitute for a full accessibility audit, and;
2. Does not and cannot resolve all accessibility issues.

Eyebobs’ Agrees to Adopt an Accessibility Policy Statement.

I’ll give the overlay companies a pass on this one. None of them claim that their tools substitute for an accessibility policy statement. Creating an accessibility statement isn’t that hard. Read this article for more information on what’s in them and how to do it.

Eyebobs’ Agrees to Implement an Accessibility Strategy.

This is the most damning part of the settlement agreement — using an accessibility overlay is NOT a valid substitute for a real and valid accessibility strategy.

Full stop.

Eyebobs’ Agrees to Provide Accessibility Training.

If overlays truly made the websites they ran on 100 % compliant, why would anyone working for Eyebobs need accessibility training?

The term of the Eyebobs’ settlement agreement is at least two years.

The settlement agreement also allows a longer period of time to get third-party content into compliance, with extensions to even four or five years. This admission makes it clear that any “one day” or “48-hour” timelines to compliance are total fantasies dreamed up by the overlay company marketing departments.

The Eyebobs’ Settlement Agreement Requires Third-party Content be Accessible.

Third-party tools are frequently implemented using API calls, which is a little bit of a black box from the perspective of the website owner.

• The website owner can tell what data was passed to the third-party tool and what object came back out.
• However, the website owner can’t see any details concerning the transformation between the input and output.

An example of this would be a map system where an address is sent to the map creation tool, and the map is created and returned by that tool.

• When this occurs, the overlay has no way to inspect the accessibility of that third-party content.
• However, most accessibility settlement agreements, including this one, require that third-party content be accessible.

Therefore, it is not feasible for overlays to make all third-party content and tools accessible. However, third-party content and tools are part of *your* website that disabled customers need to be able to interact with.

Making third-party content and tools is more time-consuming than making the underlying website accessible. Because of this, longer periods of time are usually granted in settlement agreements for third-party accessibility. This longer time acknowledges the extra work involved.

1. The website owner cannot change the third-party content.
2. The website owner has two options:

a) work with the third-party vendor in making the third-party content accessible, or;

b) replace the third-party content in the website with something accessible. This may require reimplementing a substantial chunk of the website.

And, of course, any cross-claims that the losers of these accessibility lawsuits who drank the overlay Kool-aid file against the overlay companies trying to recoup their legal fees.