An Open Letter to Organizations Hiding Behind Two Tired Excuses for Digital Inaccessibility

tl;dr: I put into words (with research!) my squinty-eyed “hmmm” pointing at business owners who express surprise when clients using wheelchairs don’t shop at their brick and mortar built with stairs and no ramp at the entry, owners who then stubbornly maintain that barrier as their standard protocol through claiming a couple of rather pathetic excuses. Except, you know, the digital equivalent.

 

Is this yet another online article about web accessibility compliance? Another lecture about WCAG standards and legal obligations? Another sermon about doing the right thing? Kind of.

What follows is less preachy, more excavation: a critique of two defensive arguments raised with alarming frequency when companies are asked to update their inaccessible websites.

You know those shrugged rebuttals, right? Gift-wrapped in business jargon and apparent rationality, as if their hands are tied by the pretty ribbon knotted into a bow on top, delivered with the confidence of someone who believes they’ve found the secret passage around equality and civil rights.

Ahem.

Context.

Before we dive into the arguments themselves, a quick reminder that approximately 61 million adults in the United States—one in four people—live with a disability. (And that number is more than likely undercounted because so many people are taught via societal ableism to hold their denial hats on really tight).

So, not a niche market. Our neighbors, colleagues, customers, family members, and you at some point in your life (spoiler: aging exists! I got my taste of that early thanks to a concussion).

WebAIM, the folks who actually measure these stats, analyzed the top million website homepages in 2024 and discovered that 95.9% contained detectable WCAG failures. Not minor inconsistencies. Not “we’re working on it” situations. Concrete, measurable obstacles that prevent people from accessing information and services.

The most common culprits? Low-contrast text (affecting 81.0% of sites), missing alt text for images (54.5%), and missing form labels (48.6%). These aren’t obscure technical requirements that demand advanced degrees to understand.

There’s some warm-up data for you, and here’s an ironic segue…

Defense Number One: “The Algorithms Say So”

Or… How Organizations Learned to Love Data-Driven Discrimination

There’s a special strain of corporate-speak that’s become popular in product reviews, stakeholder presentations, and even in accessibility team meetings. It goes something like this:

“We ran the numbers. Our analytics show minimal traffic from users with assistive technology. The algorithm prioritized other features based on engagement metrics. Data-driven decision-making led us to deprioritize accessibility improvements.”

Sounds reasonable, right? Objective? Scientific, even?

Here’s what that argument translates to: “We care more about our able-bodied visitors than making the website useable by everyone.” Maybe a metaphoric translation is more palatable: “We built a house without doors, then noticed that nobody was walking inside, so we concluded that nobody wanted to visit.”

Stuck on the Carousel

Let’s walk through the logic in that, step by ridiculous step:

Your website defies usability for visitors who rely on screen readers, keyboard navigation, or alternative input devices. Those users attempt to access your site, encounter barriers, and leave, likely frustrated. Because they can’t effectively engage with your platform, they don’t show up in your analytics in meaningful numbers. Your algorithms—which optimize based on observed user behavior—don’t see these potential users. Product teams, guided by algorithmic recommendations, don’t prioritize adjustments. The site remains inaccessible. Users continue to be excluded. The cycle perpetuates.

See the problem? It’s not circular reasoning, it’s a circular trap. A feedback loop that mistakes absence of evidence for evidence of absence, then congratulates itself for being “data-driven.”

As accessibility advocates have noted (and I’m paraphrasing here because the logic is universal): organizations claim they don’t have customers with disabilities because their spaces aren’t accessible. Then they don’t improve accessibility because they don’t see any customers with disabilities. And round and round we go.

To be fair, this critique doesn’t fully account for the genuine resource constraints companies face. Small teams with finite budgets must make difficult priority decisions, and executives have legitimate fiduciary responsibilities to allocate resources based on measurable impact. When analytics show minimal traffic from users requiring specific accommodations, the resource allocation dilemma is real, and not merely an excuse.

However, this argues for phased implementation and smart prioritization, not for exemption. Civil rights don’t wait for perfect measurement. We didn’t require segregated businesses to prove discrimination existed in their customer analytics before mandating integration. The fact that your data is incomplete because your system is exclusionary doesn’t justify continued exclusion. It demands correction.

A Flimsy Excuse Feigning Neutrality

Here’s an uncomfortable truth that nobody wants to acknowledge in company meetings: algorithms aren’t neutral arbiters descended from some objective mathematical heaven. They’re reflections of the systems we build, the data we collect, and the values we encode (whether consciously or not).

When your website systematically excludes certain users, your algorithms will inevitably deprioritize those users’ needs. That’s not the algorithm’s fault; it’s doing exactly what you designed it to do, which is optimize based on available data. The problem is that your available data is fundamentally skewed by your own inaccessibility.

Hiding behind algorithmic recommendations is what some call (usually about AI) “computational abdication,” the act of using technical processes to avoid taking responsibility for decisions that have very human consequences. (It’s also terrible business strategy, but we’ll get to that).

Innovation*? Naw, Leave Money on the Table.

Here’s where this gets interesting, and where the business case starts to look shaky for companies using the “algorithms say so” defense: some of the most widely-adopted technology features in existence originated as accessibility solutions.

Auto-complete? Developed for users with disabilities, now used by virtually everyone. Voice control? Built for people with physical impairments, now embedded in millions of devices. Contrast minimums? Required for users with low vision, beneficial for anyone trying to read a screen in bright sunlight.

By allowing algorithms trained on non-disabled user behavior to dictate product decisions, organizations are systematically cutting themselves off from innovative opportunities. They’re optimizing for the status quo** while their more forward-thinking competitors discover new markets and develop features that benefit everyone.

*There’s a Stack Overflow article that explores this paradox in depth: how data-driven decision-making, ironically, makes it harder to serve previously unserved needs and discover breakthrough innovations. Worth a read if you’re into that sort of thing.

**Status quo, as in the ableist version of society that sweeps people who identify as disabled under a rug of invisibility.

Defense Number Two: “We’re Not Federally Funded”

Or… A Masterclass in Missing the Point

The second common defensive position chirps: “WCAG compliance is only required for organizations that receive federal funding. We’re a private business, so these standards don’t apply to us.”

To that, I say, “Good luck to you [in court].” (No disrespect to the attorneys who’ve tried; however, the legal landscape has made itself quite clear).

Let’s Talk About the Law. The Actual Law, Not the Wishful Version.

Title III of the Americans with Disabilities Act—you know, that comprehensive civil rights legislation passed in 1990—applies to private businesses that serve as “public accommodations.” Notice what’s missing from that description? Any mention of federal funding.

The Department of Justice has been crystal clear about this, and I’m paraphrasing their guidance here: Title III prohibits discrimination against people with disabilities by businesses open to the public. These businesses must provide full and equal enjoyment of their goods, services, and facilities to people with disabilities.

The strongest version of the “not federally funded” argument does raise a legitimate concern. Title II entities now have explicit WCAG 2.1 AA requirements established through formal rule-making, while Title III entities face lawsuit-driven enforcement referencing standards never officially implemented through the Administrative Procedure Act. This regulatory vacuum creates genuine due process concerns. Businesses deserve clear, formally adopted standards rather than retroactive liability based on evolving interpretations of 35-year-old statutory language. The circuit splits on website coverage aren’t frivolous legal hairsplitting, though; they reflect intentional ambiguity. The better solution would be congressional action providing explicit standards, implementation timelines, and safe harbors for good-faith efforts.

However, the absence of perfect regulatory clarity doesn’t negate the underlying civil rights obligation. The ADA’s “places of public accommodation” language was intentionally broad, designed to evolve with commerce itself.

Federal courts have increasingly ruled that websites qualify as public accommodations under the ADA. Sure, there’s some circuit-level variation about whether pure online businesses need a connection to physical locations (legal scholars call this the “nexus” debate), but the trend is unmistakable: courts find that inaccessible websites violate the ADA, regardless of federal funding status.

Still Mixed Up About Title II vs. Title III?

Part of this confusion stems from events in April 2024, when the DOJ published final regulations requiring state and local government entities (covered by Title II) to meet WCAG 2.1 AA standards. This created a perception that only government entities have clear accessibility obligations.

But here’s what that interpretation misses: Title III has applied to private businesses since 1990—the entire lifespan of your newest intern hire and then some. The absence of explicitly mandated technical standards for Title III doesn’t mean private businesses have no obligations. It means they have some flexibility in how they achieve the ADA’s broader requirement of effective communication with people with disabilities.

(Courts and the DOJ have consistently referenced WCAG 2.1 AA as the practical benchmark for Title III compliance, though, even without a formal mandate. So if you’re a business claiming this doesn’t apply to you… again, best of luck with that legal strategy).

Litigation Landscape: Not Great for the Unprepared

Let’s talk numbers, because apparently that’s what gets attention in boardrooms these days:

Digital accessibility lawsuits increased by 181% from 2017 to 2018. In 2024 alone, over 8,800 lawsuits were filed related to website accessibility, and these figures don’t include demand letters or state-level filings. In 2020, 265,000 businesses received website accessibility demand letters.

Companies from Target (settled for $6 million) to Domino’s Pizza (whose case reached the Supreme Court, which declined to hear it, effectively upholding that the ADA applies to websites) have learned that “we’re not federally funded” provides approximately zero legal protection.

The average cost of a web accessibility lawsuit? Around $100,000. And that’s just legal fees. It doesn’t include the cost of actually fixing the accessibility issues, the reputational damage, or the lost business from customers who went elsewhere.

It’s worth acknowledging that current enforcement patterns do create disproportionate impacts, particularly on small businesses. When 95.9% of websites have detectable WCAG failures, this suggests compliance is genuinely difficult, not merely deprioritized. Many of the 8,800 lawsuits filed in 2024 targeted small businesses with boilerplate complaints, settling quickly for nuisance payments rather than meaningful accessibility improvements. This isn’t effective civil rights enforcement. It’s legal arbitrage that gives accessibility advocacy a bad name while doing little to help people with disabilities.

Small businesses deserve better: clear guidance, technical assistance, reasonable implementation timelines, and enforcement that prioritizes actual harm over technical violations. But abandoning the requirement isn’t the solution to problematic enforcement; it’s fixing the “how” of implementation and enforcement.

How Penny-Wise Becomes Pound-Foolish

Beyond the legal exposure, the “we’re not federally funded” argument reveals a fundamental misunderstanding of accessibility economics. Organizations treating accessibility as an avoidable expense are engaged in some truly creative accounting.

Consider: people with disabilities represent $200 billion in annual spending power in the United States alone. Research has found that two-thirds of internet transactions initiated by people with vision impairments end in abandonment due to accessibility barriers. And 90% of these consumers regularly call customer service to report inaccessibility issues before taking their business to more accessible competitors.

Meanwhile, the Web Accessibility Initiative (the folks who actually study this stuff) notes that designing a new site with accessibility in mind shouldn’t add significantly to development costs. The actual expense of building accessibility in from the start is minimal compared to retrofitting after litigation, to say nothing of the revenue lost from excluded customers.

Some organizations argue they already provide alternative accommodations: phone support, in-person assistance, manual processing of requests. If a customer with a visual impairment can call and complete a transaction with help, hasn’t the organization met its accessibility obligation? The answer is no, and here’s why: alternative accommodations aren’t equivalent to independent access. Making someone call during business hours to complete a transaction they could complete independently at 2 AM with an accessible website isn’t “equal access.” That’s a separate and unequal accommodation that imposes additional burdens (i.e. time, privacy, autonomy) on people with disabilities. The ADA requires equal access to goods and services, not partial access through less-convenient channels.

So we’re looking at an interesting equation: spend relatively little to build accessible experiences that expand your market and reduce support costs, or spend significantly more on legal fees and lost revenue while simultaneously excluding 25% of the population. (Despite being eligible for AP calculus at age sixteen, simple math has been weirdly elusive to me…but even I can see which option here makes more sense).

The Deeper Problem

Here’s where both defensive arguments become intellectually bankrupt: framing accessibility as a discretionary business decision subject to cost-benefit analysis, data-driven prioritization, and/or legal loopholes.

“What exactly is your definition of accessibility?” I ask these organizations.

Web accessibility isn’t a feature to be bumped down the task list after other product enhancements. Access isn’t a charitable gesture toward a niche market segment. Equal ease of use is not a “nice to have” implemented when the algorithms give you permission or when you receive federal funding.

Accessibility is a civil rights requirement. Full. Stop.

Not to be confused with American dentistry, the ADA (passed as an extension of the Civil Rights Movement and the Civil Rights Act) back in 1990 recognized that disability rights are civil rights. The law’s stated purpose was ensuring “equality of opportunity, full participation, independent living, and economic self-sufficiency” for individuals with disabilities.

When organizations hide behind algorithms or claim that WCAG standard requirements don’t apply to them, they’re not making savvy business decisions or navigating technical ambiguities. They’re parroting ableist justifications for what amounts to discrimination, and they’re doing it while somehow maintaining the conviction that they’re the reasonable ones in this scenario.

Then What’s a Responsible Approach?

The good news (yay!) is that we need not abandon accessibility in order to address the legitimate concerns underlying these defensive arguments, e.g. resource constraints, regulatory uncertainty, proportionate enforcement. They just require smarter implementation.

Companies don’t need to remain trapped in defensive postures or face existential risk from lawsuit-driven enforcement. Here’s what ethical maturity looks like in this space:

First: Abandon Algorithmic Abdication. Recognize that data from inaccessible systems cannot guide decisions about accessibility (for reasons explored above). Instead, incorporate accessibility requirements into web development from the earliest stages, before algorithms have the chance to optimize based on biased data. Treat accessibility as your baseline standard, not a feature to be tacked on later, especially not based on engagement metrics (and please don’t use those afterthought widgets!).

Second: Understand Your Actual Legal Obligations. Whether you’re federally funded is irrelevant if you’re a business serving the public. Assume that WCAG 2.1 AA is your target, document your accessibility efforts, and again, treat this as the basement rather than the rooftop. (Your lawyers will thank you, as will your customers and the people who might otherwise sue you—and win).

Third: Reframe the Economics. Research consistently shows that accessibility improvements typically pay for themselves through increased market reach, reduced operational costs (fewer support calls, lower legal exposure), and improved overall user experience. Companies like Apple, Microsoft, and Barclays have documented competitive advantages from their accessibility investments. Adopt this adage: no charity, yes strategy.

Fourth: Remember Humans Are Involved. Behind every inaccessible interface is a real person being denied equal access to information, services, and participation in civic life. When we focus on lawsuits and legal loopholes, we’re missing the actual point: people with disabilities have the right to participate equally in an increasingly digital world. (Revolutionary concept, I know. And plenty more where that came from).

Fifth: Build Organizational Capacity. Successful accessibility efforts require formally documented policies, dedicated personnel, ongoing education, and executive commitment. This isn’t a one-time project or capital campaign you complete and check off a “feel good” list. It’s an ongoing organizational practice, like security or quality control.

The Bottom Line

“The algorithms say so” and “We’re not federally funded” aren’t just threadbare arguments, they’re symptoms of organizational dysfunction masquerading as rational business decisions.

They represent the substitution of technical language for ethical responsibility. The privileging of convenience over civil rights. The perpetuation of systemic discrimination through seemingly neutral processes. And the remarkable human capacity for constructing packaged justifications that allow us to avoid acknowledging what we’re actually doing.

Organizations deploying these arguments aren’t just exposing themselves to legal liability or missing business opportunities (though they’re certainly doing both). They’re participating in the ongoing exclusion of people from full participation in modern life, and they’re doing so while maintaining the conviction that they’re being reasonable and data-driven.

Here’s the thing: it’s 2025. The ADA was passed into law 35 years ago. The web has transformed how we work, learn, shop, communicate, and participate in civic life for more than 25 years. We’re long past the point where these defensive arguments hold any water.

The question isn’t whether organizations can find legal loopholes or data-driven justifications for inaccessibility. The question is whether we’re finally ready to recognize that equal access isn’t optional, subject to debate, or contingent on what algorithms recommend.

No amount of computational hand-washing or creative legal interpretation changes this fundamental truth: disability rights are civil rights.

 

 

Some Resources Worth Your Time

While no single article I’ve found has comprehensively addressed both the “But the algorithms!” and “WCAG? Not here!” arguments together (until now, apparently), several important resources have tackled related themes:

The Accessibility.com piece on overcoming organizational resistance examines how companies create barriers to accessibility implementation and provides frameworks for building commitment. Lainey Feingold’s work on ethics in the digital accessibility legal space discusses how defensive legal arguments harm both people with disabilities and the broader accessibility movement. The 2017 Torque Magazine article challenging common excuses for inaccessibility argues that accessibility should be treated as a bug to fix rather than a feature to debate (shout-out for WordPress, woot!).

The W3C’s research on financial factors systematically dismantles cost-based arguments against accessibility, demonstrating how accessible design typically reduces expenses while expanding market reach. And various articles from organizations like Diversability contextualize web accessibility within the broader disability rights movement.

All beautifully cited in the references listed here, for those who appreciate a nice little bibliography.

References

1. WebAIM Million Report (2024). https://webaim.org/projects/million/2024
2. Deque Systems, “The Business Case for Accessibility” (2023). https://www.deque.com/blog/the-business-case-for-accessibility/
3. W3C Web Accessibility Initiative, “Financial Factors in Developing a Web Accessibility Business Case.” https://www.w3.org/WAI/business-case/archive/fin
4. We4able, “5 Myths About Accessibility That Are Holding Us Back” (2025). https://www.we4able.com/2025/11/03/5-myths-about-accessibility-that-are-holding-us-back/
5. Stack Overflow Blog, “‘Data driven’ decisions aren’t innovative decisions” (2023). https://stackoverflow.blog/2023/04/03/data-driven-decisions-arent-innovative-decisions/
6. U.S. Department of Justice, “Guidance on Web Accessibility and the ADA” (2025). https://www.ada.gov/resources/web-guidance/
7. Federal Register, “Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services” (April 24, 2024). https://www.federalregister.gov/documents/2024/04/24/2024-07758/nondiscrimination-on-the-basis-of-disability-accessibility-of-web-information-and-services-of-state
8. Bureau of Internet Accessibility, “The Most Common Web Accessibility Issue of 2024.” https://www.boia.org/blog/the-most-common-web-accessibility-issue-of-2024-and-how-to-fix-it
9. Accessibility.com, “Overcoming Organizational Resistance to Accessibility.” https://www.accessibility.com/blog/overcoming-organizational-resistance-to-accessibility
10. Feingold, Lainey, “Ethics in the Digital Accessibility Legal Space” (2020). https://www.lflegal.com/2019/07/ethics-2/
11. Torque Magazine, “There’s No Excuse For Bad Site Accessibility” (2017). https://torquemag.io/2017/05/theres-no-excuse-bad-site-accessibility/
12. Diversability, “Digital Accessibility: The Next Frontier of Disability Rights” (2022). https://mydiversability.com/blog/2022/7/26/digital-accessibility-the-next-frontier-of-disability-rights
13. ADA National Network, “Research Brief: Digital Access and Title III of the ADA.” https://adata.org/research_brief/digital-access-and-title-iii-ada
14. Corporate Compliance Insights, “The True Cost of Website Inaccessibility” (2019). https://www.corporatecomplianceinsights.com/cost-website-inaccessibility/
15. American Bar Association (2025). https://www.americanbar.org/groups/business_law/resources/business-law-today/2025-august/digital-accessibility-under-title-iii-ada/
16. Shopify (n.d.). https://www.shopify.com/news/accessibility-lawsuits
17. Venable LLP (2018). https://www.venable.com/insights/publications/2018/01/does-your-company-website-comply-with-title-iii-of
18. The Regulatory Review (2021). https://www.theregreview.org/2021/06/16/mcdonough-federal-courts-disagree-accessibility-online/
19. Day Pitney LLP (2022). https://www.daypitney.com/insights/publications/2022/04/27-ada-claim-website-accessibility-under-title-iii
20. Institute for Legal Reform (2023). https://instituteforlegalreform.com/blog/small-businesses-targeted-with-ada-lawsuits/
21. ADA Site Compliance (2024). https://adasitecompliance.com/2023-ada-web-accessibility-lawsuit-statistics-full-report/
22. Ansell Grimm & Aaron (2023). https://ansell.law/protecting-small-businesses-and-property-owners-from-serial-plaintiffs-and-self-appointed-testers-who-file-nuisance-suits-under-the-americans-with-disabilities-act/
23. Various legal analyses of Robles v. Domino’s Pizza, 913 F.3d 898 (9th Cir. 2019).