If you’re like most website owners, you might assume that you aren’t responsible for making any special accommodations to your site for the people with disabilities who need to use it.
In fact, you probably aren’t especially familiar with what accommodations disabled people might need — and even if you are, you might assume that those issues aren’t relevant to your own site’s visitors, for a variety of reasons.
In 2022, the U.S. Department of Justice announced guidance that websites DO fall under Americans with Disabilities Act (ADA). US courts have generally interpreted ADA to apply to websites as well as physical premises, and legal enforcement has only increased over the years as more website users sue the owners of inaccessible sites.
In the past, the focus of these lawsuits has mostly been government sites providing things like essential services. However, recent lawsuit targets have included private businesses, including ticket sale websites and even food blogger websites. In 2022, 74% of the website accessibility lawsuits filed under ADA involved eCommerce sites.
That said, there’s no need to panic. You won’t have much to worry about if you keep a few important things in mind, as we’ll explain in this article.
Introducing Title III of the ADA
The Americans with Disabilities Act was signed into law in 1990, and Title III of the ADA prohibits discrimination on the basis of disability in “places of public accommodation.”
According to this helpful article on the issue of website ADA compliance from JD Supra, the law states that guests with disabilities who visit the property must be provided accommodations that eliminate potential barriers to goods and services where such removal is “readily achievable” or “easy accomplishable and able to be carried out without much difficulty or expense.”
This section of the law was written with physical access barriers in mind, and it didn’t exactly take the digital age into consideration. However, as websites came to play an increasingly critical role in our lives over time, courts have interpreted the law to pertain to websites and apps, as well — especially because the intent of Congress was to make sure that the ADA accommodations kept pace with changing technology.
However, because the interpretation of the law continues to evolve and change, there has been plenty of confusion as to exactly what criteria an accessible website must meet. One recent legislative effort to define the criteria more clearly, the Online Accessibility Act, H.R. 8478, failed to pass in Congress.
The “Surf-By” Litigation Trend
Over the past few years, lawsuits filed against businesses for website accessibility issues have become somewhat of a cottage industry. Some lawyers will file hundreds of lawsuits on behalf of a single plaintiff alleging that various websites aren’t accessible.
JD Supra explains: “While promoting website accessibility may be the stated goal of a “surf-by” lawsuit, there is also a financial incentive to the plaintiff and their legal representative. Title III limits a plaintiff’s legal remedies to injunctive relief and attorneys’ fees but analogous state discrimination laws like California’s Unruh Civil Rights Act or New York’s Human Rights Law, also provide monetary damages for accessibility violations.”
Basically, attorneys are taking advantage of these state laws that allow plaintiffs to seek damages to try to get as much money as they can. And businesses that are targeted don’t typically fight back: because lawsuits are so expensive, and because settlements are likely to increase as the case progresses, most business owners opt to settle these lawsuits quickly instead of fighting them in court.
What to Do if You Receive a Formal Complaint About Your Website’s Accessibility
Don’t ever ignore a website accessibility complaint or assume that it’s frivolous. The notice of a complaint typically comes as a letter from the plaintiff’s attorney, and it sometimes called a “demand letter”.
This article from the New York Law Journal has the following advice for people who receive formal complaints about website accessibility:
“Once on notice, do not ignore the complaint. Consult counsel experienced in this area who understand the current state of the law and the practicalities in defending these cases. Once a complaint is filed, time is of the essence – you will lose some degree of control over the timing of remediation and the consequences for inaction. Most cases in which the target entity has a clearly non-compliant website settle within two to six months, and most settlements are negotiated in the pre-answer period. Allowing a matter that should, and ultimately will, settle to proceed to a default, or even to a responsive pleading and mandatory initial court conferences, only serves to increase the plaintiff’s counsel fee and expenditures that will be demanded (paid by the defendant) when the case ultimately settles.”
If you do receive a complaint, the first thing you should do is find a lawyer who has deep expertise in this specific area of law and in your own local jurisdiction. Intimate knowledge of the cases that have already taken place in your area can make a big difference in the best way to approach a complaint.
How to Start Mitigating Your Legal Risk
The best strategy to avoid any legal trouble, especially if you have a larger company with a consumer-facing website, is to invest in basic web compliance efforts long before your website becomes a target.
In some cases, defendants are given a chance to rectify the issues on their site once an official complaint is made, usually within a relatively short turnaround time. There may simply not be enough time to fix the accessibility issues on your site before the complaint proceeds, and you don’t want to have to rush through the process or even have to take parts of your website down while you work on it.
The good news is that making your website fully accessible has other benefits beyond avoiding lawsuits, as we wrote in our post Beyond Lawsuits: 5 Reasons to Make Your Sites Accessible. For example, a lot of the efforts that make your site more accessible also make it easier to use, even for non-disabled people, which allows you to expand your customer base even further. It’s best to invest in website accessibility long before you get a complaint about it.
If you don’t have the time or the budget to completely overhaul your website to make it accessible right now, one solid strategy is to start by focusing on the interactive elements of your site. That’s because interactive elements — such as when someone can’t order a product or pay their bill online — are usually what lawsuits center on. You can get a good idea of what’s going on with your website accessibility investing in a sampling audit, like those offered by AccessiCart.
Finally, remember not to worry too much. Technically, anyone can sue your business for pretty much any reason. Just make sure to stop putting website accessibility efforts on the backburner. Prioritize it as an issue and keep making small improvements over time, both for the good of your business and because it’s just the right thing to do. Progress, not perfection. We all deserve to be able to use all that the internet has to offer.
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