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The Inexorable Rise in ADA Website Accessibility Lawsuits and How to Ensure You’re Not Next

American businesses are facing an unprecedented number of website compliance lawsuits. Brought under the Americans with Disabilities Act (ADA), the numbers are climbing year over year.

According to an annual survey by legal firm Sayfarth Shaw, there were 814 federal lawsuits in 2017, up from 262 in the previous year. Mid-year figures released at the end of July showed that this total has already been exceeded in the first six months of 2018, with the year-end total likely to be in excess of 2000 cases. And that does not include lawsuits in state courts. Or the many more demand letters sent by attorneys that have threatened lawsuits if compliance is not addressed.

Why now?

The rise in complaints is partly driven by disabled people and disability rights organizations discovering that the law provides an effective tool to force sluggish businesses into compliance.  Early cases established that (in the opinion of most courts) the ADA applies to the websites of almost any business that is open to the public.

However, the spike has been exacerbated by a handful of attorneys who have spotted an easy way to make money, by encouraging disabled plaintiffs to make multiple claims against different companies.  Some businesses have reacted in alarm to the opportunistic nature of some ADA litigation — the issue has been raised in Congress and as a result  there may be changes made to the complaint procedure to give businesses more chance to comply with the law before being sued. However, the essential requirement in the ADA for non-discrimination is not in dispute, and businesses will still have to comply.

While brands may wince, the overall impact of this legal spotlight has been hugely beneficial to disabled people (and web users in general) who can now use thousands of websites that were previously unavailable to them.

Some recent web accessibility cases

Three ADA cases started this year involved high profile companies Burger King, Amazon.com, and Rolex Watches, but much smaller companies are also being hit by similar suits.

Some industries are being targeted in a wholesale manner, often by a single individual and their attorney. The financial services sector is one example. Dozens of banks of all sizes (51 in just a few months this year according to the American Banker website) have been hit by ADA lawsuits over their websites.

Credit unions have also been a target. Some, who typically take their membership from a local geographical area, have managed to have their cases dismissed by the court on the grounds that the plaintiff did not live in their area, so was not eligible for membership anyway. But this approach, as with most ADA cases that have been dismissed on a technicality, is only a temporary solution. Their websites remain non-compliant, still wide open for someone who does qualify to make a complaint.

While most ADA cases to date have been settled out of court, supermarket chain Winn Dixie chose to fight their case all the way to trial, the first company to do so. The case was brought by a blind man unable to use their website with screen reader software. The judge ruled against the company in June 2017, saying "...Winn-Dixie has violated the ADA because the inaccessibility of its website has denied [the plaintiff] the full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations that Winn-Dixie offers to its sighted customers." They were ordered to make their website accessible, and pay the plaintiff's legal fees of $105,000. It’s important to note that redesigning a website to meet accessibility requirements can cost hundreds of thousands of dollars.

Don’t wait for your company to be targeted with an accessibility lawsuit

The good news for businesses is that risk of litigation can be easily avoided. Coding for accessibility during early development adds only a small overhead to a web project, and this is more than offset by the business benefits: an accessible website opens the door to more customers and improves the user experience for everyone. Consider the fact that 1 billion of the over 7 billion people on this planet have some level of disability. Improved accessibility can improve your reach by over 14%. This translates to better customer experience, happier customers, a stronger online brand and a more successful business.

Examples of accessibility checkpoints that beneft the general population include features like pinch and zoom and using acceptable background and text contrast ratios, which can help people on mobile devices in bright sunlight or those who might have forgotten their reading glasses that day.

When done manually, bringing an existing website into compliance can require costly resources, but it can be made less difficult when using a content management system (CMS) that offers validation checks to ensure content and coding adhere to accessibility guidelines. While far too many web design agencies still do not implement accessibility by default for their clients, there are tools you can use to ensure their delivered solutions don’t knock you out of compliance. It is recommended that you review accessibility capabilities in any vendor selection process and insert them as requirements into your deliverables to avoid costly re-engineering.

If your business is likely to be covered by the ADA, you need to make your websites accessible as soon as possible. Do not wait for a disabled person and their attorney to challenge you. Even a demand letter can ask for payment of legal expenses in excess of $20,000 - and still require you to make the website concerned accessible! If the matter proceeds to court the costs become much higher.

If you recently received a web accessibility complaint

What to do if you have already received an attorney's complaint letter or a lawsuit?

Some businesses try to fight these cases. And some do win on procedural points. Consider, however: if you win by appeal, apart from the trouble and expense involved, your website will still remain non-compliant, vulnerable to the next disabled person who wants to file a complaint. Only fully ADA-compliant websites are safe.

One way to deal with these legal challenges is through a process of Structured Negotiation, where both sides agree to work together to achieve an accessible website, instead of fighting over it. It is usually much cheaper than fighting through the courts. The leading proponent of this approach is the law firm of disability rights lawyer Lainey Feingold.

But whatever you do to meet your legal responsibilities, proceed with correcting your website with urgency, as described below.

Three steps to ADA web compliance

While the ADA doesn’t specifically reference the Web Content Accessibility Guidelines (WCAG), they have become the de facto standard cited in courts by precedent. If your business's website has not previously been made ADA compliant, here are three steps to take now:

  1. Audit: Conduct an accessibility audit of your website. This should check for compliance with the WCAG 2.0 and 2.1, minimum Level AA (see below). The audit should deliver detailed recommendations for issue resolution (rather than leaving that for your developers to research). Implement the recommendations and re-audit the website to confirm compliance.

  2. Train: Arrange accessibility training for your developers, testers, and content publishers. This should be refreshed regularly.

  3. Monitor: Put an automated system in place to regularly crawl your websites for accessibility compliance and ensure developers and content publishers act on any errors that are flagged.

How does WCAG 2.1 affect ADA compliance?

As some reading this may know, the WCAG was updated to version 2.1 earlier this year, adding 17 additional requirements. Courts will no doubt continue to reference version 2.0 for now, but this could soon change. If you are implementing WCAG guidelines on your website for the first time, we strongly suggest including the 2.1 additions as well as 2.0 to avoid the need for changes down the line.

Continue optimizing for accessibility

Multiple claims against one financial institution, the Bank of America, illustrate how accessibility is an ongoing project. The bank was first challenged over its website and ATM machines as far back as 2000. It was the first ADA case against a bank. They worked with the claimants using structured negotiation rather than fighting it in court, and the website was corrected.

However, in 2013 two Californian people with impaired vision complained that some newly added pages were not accessible to them. Two years later another customer found they could not use a newly added credit card rewards scheme. Again, structured negotiations were used and the problems were corrected.

This experience highlights the need to ensure your developers make web accessibility a permanent part of their work.

Move quickly to avoid trouble

Schedule the audit and remedial work as soon as possible to avoid continued risk. There is no indication that the current surge in ADA litigation will subside any time soon. Few businesses are safe but at the end of the day, it is disabled people who suffer most from a non-compliant internet.

The good news is that you will obtain more customers as a result of this work. The 56 million disabled people in the US have an estimated spending power of $175 billion in disposable income - but when they search for products or spend that money online, it will only be through websites they can use.

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