It’s no secret that agencies and freelancers who are building websites today, are very likely hearing about accessibility a lot more than they were just two or three years ago. And there is a lot to unpack around the importance of accessibility that we won’t be able to get to here. But, as accessibility has started to come up more and more often in everyone’s website briefs, it’s prompted many agencies and freelancers in our audience to ask us: Who is responsible for website accessibility?
Most people who work on the web agree that, on a fundamental level, we should be trying to exclude as few people as humanly possible from accessing information and tools on the internet. It makes perfect sense both ethically and in business. And if we can create transparency and clarity around this topic for all parties, we can build and maintain a more accessible web while avoiding legal entanglements, most of which are entirely preventable.
Who is responsible for website accessibility? It’s all about perspective.
I am a firm believer that if we can understand one another’s perspectives, we can find common ground and pull in the same direction most of the time.
The Agency Perspective
From an agency’s perspective, the party responsible for website accessibility often ties back to the original scope of work. If accessibility was included in the deliverables, then meeting the agreed-upon standard (typically WCAG) is the agency’s responsibility during the initial website build.
However, challenges arise when clients opt not to include ongoing support or updates, leaving the site vulnerable to future accessibility issues. Additionally, agencies often have limited control over the content clients upload post-launch, which can directly impact usability.
To manage this, agencies work to narrowly define their responsibilities and provide tools, training, or guidelines to mitigate risks beyond their control, while trying to keep the client happy. The latter can sometimes lead to over-promising on outcomes, or skirting around “difficult” topics rather than tackling them transparently.
The Client Perspective
From the client’s perspective, the primary focus is on receiving a high-quality website that functions seamlessly and meets their business goals.
Clients may assume that everything (including accessibility) is part of the package, regardless of whether it was explicitly discussed during the project’s planning phase. This means they likely believe the agency is who is responsible for website accessibility. Most clients likely lack a technical understanding of how websites are built, such as the roles of themes, plugins, or coding standards, and how these elements impact overall accessibility.
Similarly, they may not realize the extent to which their own decisions can influence how accessible their site ultimately is. This gap in knowledge often leaves clients making incorrect assumptions, expecting a deliverable that not only meets their objectives but is also accessible (even if not explicitly mentioned in scope).
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What does the law say about who is responsible for website accessibility?
There are numerous legal considerations around accessibility, and it’s important to point out that we are not lawyers. However, this talk by attorney Lainey Feingold and this more recent presentation by attorney Richard Hunt offer valuable perspectives.
There is a very large amount of established case law in the United States around digital accessibility. From our observations and what we’ve learned from legal experts who have come to present at our events, the website owner is the one who is overwhelmingly likely to be found liable for any accessibility barriers.
Of course, this does not absolve the agency of responsibility. In many cases, the client is hiring an agency as a trusted professional to build a website that will serve their business objectives. One of those business objectives is very likely not to break the law or be sued. As the agency, you should educate yourself (and your customers) on accessibility requirements, as well as potential legal risks your clients may be exposing themselves to by not prioritizing accessibility.
It is important to remember that your client is trusting you to help them make good choices about their website. And if you take them down a path that leads to trouble, they may blame you. And that can lead to a very embarrassing one-star review, or much worse if they decide to get lawyers involved.
Potential Future Changes on the Horizon
There are possible changes to the law that could make agencies that operate in California directly responsible for poor accessibility on their clients’ websites. California Bill AB 1757 is one that’s been on Equalize Digital’s radar for some time now. At the time of writing this post, it is currently still being amended in the California Senate.
Though changes to the bill’s language are ongoing, there appear to be avenues to penalize service providers (i.e. agencies) who provide deliverables that contain accessibility barriers. Listen to Accessibility Craft Episode 82 for a discussion on this bill, and one web professional’s experience as an adviser to the California lawmakers who are working on it.
My “hot take” is that California Bill AB 1757 and other laws like it are more likely to move forward as long as businesses continue to be blindsided by accessibility lawsuits, due to poor communication and collaboration with their agencies.
There are a lot of concerns about what this bill means for how agencies and freelancers will need to operate in California should it become law.
All of this stems from a failure on the part of both parties to embrace a shared responsibility.
Embracing a Shared Responsibility
Most of us who operate in the digital space are already familiar with balancing budgets, timelines, and client business objectives. When it comes to who is responsible for accessibility, agencies and their clients should be united in the following shared interests:
- Total clarity about what level of accessibility is in scope, so that there are no surprises.
- Understanding how decisions and actions lead to good (or bad) accessibility outcomes.
- Keeping lawyers and judges out of the picture.
Who is responsible for website accessibility? We believe both agencies and clients share this obligation, and both should want to make it happen.
Let’s break down each one of those shared interests in more detail.
What’s in the (Accessibility) Scope
Whether you are promising that all deliverables will meet WCAG 2.2 AAA, or promising just a “100” accessibility score in Google Lighthouse (we do not recommend it), the level of accessibility the agency is committing to should be spelled out in exact detail. Sales and delivery teams should be capable of articulating and executing a specific series of action steps to ensure accessibility at each phase of a project.
What’s Not in Scope
In addition to knowing what measures will be taken to ensure accessibility to whatever level was promised, it is equally important to spell out anything that is excluded.
Here is a sample exclusion list that Equalize Digital uses for remediation projects:
- Any individual post or page that is not analyzed and remediated (or certified as meeting WCAG standards) by the Company.
- Any linked document (PDF, DOCX, XLS, PPT, Google Doc, etc.).
- Embedded or linked videos (YouTube, Vimeo, etc.).
- Any page, post, content, or other deliverable modified by Client after remediation (or certification) is complete.
- Any plugins, extensions, or other website software added by Client during or after remediation (or certification) is complete.
- Any third-party system, plugin, or element that is updated or modified during or after remediation (or certification) is complete.
Note: The above sample language is provided for example purposes only. Always consult an attorney before adding or adjusting language in any legal agreement.
By giving clients a clear picture of what is included and what is excluded, there is virtually no ambiguity about what is being promised regarding accessibility. This will lower the risk of misunderstandings or legal entanglements between the parties.
Read more about incorporating accessibility in web development contracts here.
Understanding the Impact of Decisions on Accessibility
Agencies and clients both play pivotal roles in shaping the accessibility outcomes of a website.
The agency’s expertise informs the technical foundation and design choices. This can help or hinder the level of accessibility baked into the site’s core structure. For example, an agency can unintentionally undermine accessibility by relying on a poorly chosen theme or plugin that lacks support for accessibility standards. Even if the initial website appears compliant, underlying limitations in these tools can create barriers for users, such as improper navigation for screen readers or inaccessible interactive elements.
Meanwhile, the client influences accessibility through their ongoing decisions, such as the content they publish, the updates they request, and the maintenance practices they follow. A client can adversely affect accessibility by publishing new content with untagged images, incorrect heading order, or ambiguous link text. These seemingly minor actions can make it difficult for users with disabilities to navigate and understand the site, regardless of the quality of the initial build.
Clear communication, shared accountability, and proactive measures from both sides – such as regular training and automated testing tools – are essential to achieving accessibility in both the short and long term.
Avoiding Legal Headaches
It seems like an obvious statement when taken at face value: Neither the agency, nor the client enter a relationship with a goal to be engaged in a legal battle months or years down the line. When things reach that point, everyone loses.
Educating the client on legal risks and encouraging them to follow your plan to ensure their website is meeting best practices is a great place to start. Nobody is going to be upset that you are thinking about their future and have a plan to help them (a) avoid entirely unnecessary and preventable legal troubles, and (b) benefit from having a more usable website, getting them increased traffic and conversions.
And what if the client insists on making a decision that exposes them to legal risk?
At Equalize Digital, we ask them to sign a waiver absolving us of all liability for the decision. Having done this several times, the client thought better of it in most cases and decided to go with our original recommendation instead of signing the waiver. Here is an excerpt:
The Client hereby releases, waives, discharges, and covenants not to sue the Agency, its affiliates, employees, officers, directors, agents, or subcontractors from any and all claims, demands, damages, losses, liabilities, costs, and expenses (including attorneys’ fees) arising out of or in connection with any issues, problems, or damages that may occur as a result of the Client’s decision not to follow the Recommendations.
The Client assumes all risks associated with not following the Recommendations, including but not limited to risks related to website performance, security vulnerabilities, user experience, and any other negative impacts.
The Client agrees to indemnify, defend, and hold harmless the Agency from and against any and all claims, demands, damages, losses, liabilities, costs, and expenses (including attorneys’ fees) arising out of or related to the Client’s decision not to follow the Recommendations.
Note: The above sample language is provided for example purposes only. Always consult an attorney before adding or adjusting language in any legal agreement.
Document Everything
Documenting every aspect of accessibility work that’s being performed is crucial for agencies building websites for clients. It serves as a detailed record of the steps taken to meet accessibility standards and provides clear evidence of what was promised and delivered. By keeping meticulous records (contracts, scope definitions, testing results, and any correspondence about accessibility), agencies can protect themselves in case disputes arise.
These documents not only demonstrate that the agency fulfilled its commitments but also show due diligence in addressing accessibility requirements. Beyond legal protection, documentation reinforces transparency and builds trust with clients, showcasing the agency’s commitment to accessibility and accountability.
How We Help Agencies
If you are new to accessibility as an agency owner or freelancer, it is perfectly normal to be nervous. The fact that you are feeling nervous is actually a good sign, because it illustrates that you have the self-awareness to recognize that there may be a gap in your operation.
One thing that can help is to find an external accessibility partner. Equalize Digital works with dozens of agencies across the globe to help their teams take the guesswork out of accessibility. It is a great way to know you’re covered by experts, and that your team can learn and build their own accessibility skills through working with us.
Learn more about our agency partner program, and contact us if you are interested in exploring how we can help fill the unique accessibility gaps that exist in your operation.
