Prediction 1: The web will slowly continue to become more accessible
The two annual accessibility reports — SOAR and the WebAIM million showed slight improvements in web accessibility, but the overall rate of inaccessibility is still pretty atrocious.
So there are two trends here:
Smaller companies can still get sued. This leads us to prediction #2.
Prediction #2: Digital accessibility lawsuits will continue to increase
2021 showed an expected continued increase in litigation, with more than 4000 lawsuits filed. The only question is whether limitations in such litigation being reviewed in New York and Florida courts, two of the most popular jurisdictions for such lawsuits, will keep that number from hitting 5000 in 2022.
84 % of companies in a Forrester survey are working on accessibility. So that leaves 16% of a relatively large number that are painting lawsuit targets on their backs. Furthermore, the court in the Hooters case clearly found that companies can be sued:
In jurisdictions following the Hooters doctrine, anyone can be a defendant in a lawsuit until they have accessibility fully baked into all of their customer-facing websites and mobile applications. That includes both the 84 % of businesses working on accessibility and the 16 % that are completely ignoring it.
Prediction #3: More verdicts and settlement agreements will start to put the brakes on the use of accessibility overlays/plugins/tools/widgets
If you believe the claims of the overlay vendors, accessibility overlays are in use on millions of web pages with hundreds of thousands of users. Note:
Over 200 overlay customers were sued in 2021 for lack of accessibility on their website.
This ADP settlement was critical for four reasons:
In 2021, WebAIM noted that 97.4% of home pages had detected WCAG 2 failures, down slightly from 98.1% in February 2020. That means the web should be accessible some time in the 2070s or 2080s if this rate continues.
The SOAR report, which looks more closely at registration processes and does some manual testing, found that out of the Alexa 100 websites tested, 62% were accessible to screen readers, up from 40% in 2020.
Larger companies, which are more likely to be sued because of their deep pockets and more likely to have DEI groups, ERGs, and budgets because of their size, are becoming accessible more quickly.
Smaller companies with fewer resources are at the rear of the accessibility pack.
From 2021 Usablenet 2021 YEAR END REPORT on ADA ADA DIGITAL ACCESSIBILITY LAWSUITS
even if they have already entered into a settlement agreement with another party, and;
even if they have remediation efforts underway.
debunks some of these usage claims at OverlayFalseClaims.com
The settlement agreements have started to roll in, with two significant cases settling towards the end of 2021 — EyeBob’s and ADP.
There may be counterclaims against overlay companies from those who are being sued or entered into settlement agreements.
Renewed accessibility activity from the Department of Justice will carry into 2022. Future actions may include websites that use overlays, especially those with COVID-related information or those where people with disabilities are being penalized financially for their lack of access.
FTC complaints about overlay company false advertising will start to pick up.
ADP is #208 on the Fortune 500.
Disability Rights Advocates (DRA), the firm representing the plaintiff, is well known for groundbreaking cases related to accessibility. These cases include physical access, accessible voting, education, transportation, and digital accessibility lawsuits such as White v. Square, NFB v. Scribd, and the granddaddy of digital accessibility litigation, NFB v. Target. Most importantly, DRA is known for cases that make a difference. DRA is not a drive-by accessibility plaintiff firm.
The plaintiff, San Francisco Lighthouse for the Blind, is not a hit-and-run plaintiff. They file meaningful litigation, and aren’t in it for a quick buck.
’s Structured Negotiation process from the second edition of her book, Structured Negotiation a Winning Alternative to Lawsuits was used in the ADP case. Every accessibility manager and attorney needs a copy of this book.
I’m not the only one with a doom and gloom outlook for overlay vendors. AudioEye’s stock has gone from a high of 42 in February 2021 to a current value of under 7. One market analyst cited:
“weak governance,”
minimal R&D spending, and;
a previous association with Martin Shkreli
as some of their reasons for their negative outlook. Martin Shkreli, aka “Pharma Bro,” is not expected to be released from prison until late 2023 and was convicted of multiple counts of securities fraud and conspiring to commit securities fraud.
Prediction #4: WCAG 2.2 will become the new standard most private sector companies use to determine whether or not something is accessible.
WCAG 2.2 will become final, hopefully in Q1 of 2022. When WCAG 2.1 became final, it only took four months to be referenced in the first settlement agreement. Four months after WCAG 2.2’s anticipated change to final recommendation status would be sometime towards the end of July 2022.
WCAG 2.0 has 38 Level A and AA criteria
WCAG 2.1 added 12 Level A and AA criteria
WCAG 2.2 adds 8 new Level A and AA criteria
The most difficult of the new WCAG 2.2 criteria to implement from my perspective is accessible authentication, an A-level criterion. If any part of your website sits behind a login wall, password-less authentication is absolutely the first WCAG 2.2 criteria you should be investigating.
As far as public sector sales go, I do not see the US government adopting WCAG 2.1 or 2.2 as an update to 2.0 in 2022. It takes many hearings and comment periods for this to happen. Because those activities have not started yet, the standard used by state and federal government organizations is unlikely to change in 2022.
Prediction #5: Larger companies want to get a head start on WCAG 3.0.
WCAG 3.0 is by no means complete, but there are a couple of strong departures from the way WCAG 2.X operates that are proposed.
Changes in color contrast measurements
Currently, the method for measuring color contrast in WCAG 2.X is brute force and based on font size:
3.0:1 for text that is 18 points in average weight or above, or 16 point bold and above
4.5:1 for everything else
Another monster assumption in the way color analysis was performed under WCAG 2.X was that it didn’t matter which color was the text color or the background color. Under WCAG 2.X, color is color. One size fits all.
However, these guidelines didn’t exist when there was a mobile device in almost every pocket. Additionally, we’ve learned through research that it does matter for perception and understanding which is the foreground and which is the background colors.
APCA is the proposed next generation of color analysis for WCAG 3. There are several paradigm shifts here, including:
Scoring from 1 to 108. Like WCAG 2.X, the higher the score, the stronger the contrast.
Sliding scale considerations for font-weight, something that, as a person who struggles reading thin light fonts on dark backgrounds, I wholeheartedly applaud.
Which color is the text color is part of the calculations.
Consider these two screenshots of identical color comparisons. The only difference is:
in the first screenshot, the text color is white, and the background is royal blue.
in the second screenshot, the text is royal blue, and the background is white.
With the lower contrast font (where the text color is blue), a 200 weight font would require a font size of 33 pixels to be considered compliant. With the colors reversed (white text, blue background), a 200 weight font size of 30 pixels would be considered to be compliant.
Colors take FOREVER to get changed, especially when packaging or marketing collateral is involved. Companies that have been skating on the edge of WCAG 2.X compliance with 3.01 and 4.54 color ratios as measured by the current color standard would be well served to start looking at APCA, even though neither it nor WCAG 3 are final yet. Just about everyone agrees that WCAG 2.X’s approach to color is much too basic. WCAG 3 is guaranteed to be different. I wouldn’t start a multi-million dollar re-branding campaign yet, but 2022 is not too early to start thinking about a basic project plan for what it would take to update digital property color contrast and budgeting for that eventuality.
WCAG 2.0, 2.1, and 2.2 AAA guidelines
One of the significant changes proposed in WCAG 3.0 (aka Silver) is to move away from A, AA, AAA criteria that have been in place for years and replace them with a scoring system.
The way accessible software procurement works today requires procurement professionals with specific accessibility subject matter expertise to conduct a laborious review process. They digest ACR/VPATs to determine which of the competing vendors have more accessible products. With each ACR/VPAT sometimes over 100 pages in length, this can take days — think of it as comparing plot lines from multiple HG Wells novels to decide which one you like the best. Under the WCAG 3.0 proposal, with each product receiving a score, someone with no specific accessibility training can make an accessibility determination in minutes. All they will have to do is look at the scores for each product to derive “Vendor A’s product accessibility score is 3.7. Vendor B’s product accessibility score is 4.2. Therefore Vendor B’s product is more accessible.”
How does this scoring system factor into the trend? Under the current W3C Silver proposal, meeting WCAG 2.X AAA criteria will get products higher scores. If an organization always wants to come out on top of the scoring contest, they have to meet at least some WCAG 2.X AAA criteria. Up until now, WCAG 2.X AAA criteria have been considered aspirational by most development organizations.
Therefore, those companies who have already met WCAG 2.1 AA (which is many larger organizations) are looking at which WCAG 2.X AAA criteria they can add to be ready for when WCAG 3.0 becomes final. This is likely still three years off, but it will also put companies in a better place for when the European Accessibility Act becomes final in 2025. Since making something more accessible is not as simple as flipping a light switch, these companies are getting a head start to be more competitive when it becomes much easier to see who is more accessible.
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