Did your company receive a Demand Letter stating that your website is in violation of Americans with Disabilities Act (ADA) because it’s not accessible to individuals with disabilities? You’re not alone. Thousands of companies are in the same boat – from big brands to small niche businesses – with the number of web accessibility cases under the ADA growing exponentially since 2015 (up 177% from 2017 to 2018) and showing no signs of slowing. And the ADA litigation trend doesn’t discriminate – if you have a public facing website
When the ADA Title III was enacted in 1990 prohibiting discrimination on the basis of disability in the activities of places of public accommodations, the focus was on ensuring access to physical locations. Fast forward almost 30 years and a lot has changed, but it’s still the same ADA. Regardless, the Department of Justice (DOJ) has repeatedly held that while ADA Title III language does not specifically address the internet, it does apply to websites of public accommodations, even in the absence of affirmative regulations. But, in the absence of formal regulations, public accommodations have flexibility in how to comply with the ADA’s general requirements of nondiscrimination and effective communication. The courts have taken on a more prominent role in determining if and how the ADA applies to websites and mobile apps, and which specific standards should be targeted for compliance. Regarding technical standards, the DOJ has frequently cited the Web Content Accessibility Guidelines (WCAG) 2.0, specifically promising to adopt WCAG 2.0 Level AA criteria as the standard for web accessibility regulations in 2018, but later moving this action to the department’s “inactive list.”
In the absence of clear regulations, people with disabilities and their advocates continue to resort to litigation in order to achieve access to information and services on the web. Fortunately, the majority of ADA web accessibility complaints never make it to the courtroom. If your organization receives a web accessibility demand letter, here’s 11 things you should know to help you navigate the process and craft a win-win settlement agreement.
1. Counsel is critical
If you receive a demand letter, your first step should be to secure counsel. Given that digital accessibility litigation is a relatively new legal space, the need to have good legal counsel cannot be understated. If your internal counsel doesn’t have experience with ADA settlements, particularly for web accessibility complaints, there are specialized law firms that you can consult. Once counsel has been secured and an overall approach discussed, the legal team will typically take the lead on engaging a technical expert to detect violations on the site and recommend a prioritized plan for fixing them.
2. The majority of digital accessibility cases are resolved at the settlement table
Most cases never make it to court, with negotiations resulting in a structured settlement agreement between the two parties. Only one case to date – Gil v. Winn-Dixie Stores, Inc. (2017) – has gone to trial and received a ruling, with the judge ordering that Winn-Dixie make their website compliant with WCAG 2.0 standards.
One interesting takeaway from this case – Winn-Dixie testified that its current website was created in 2015, and substantially overhauled in early 2017, at a combined cost of $9 million. Accessibility was not addressed in either build. During the trial, a technical expert brought in to evaluate the site estimated that the cost to bring it into compliance with WCAG guidelines would be around $37,000 – a drop in the proverbial bucket. Had they been proactive – integrating accessibility in the design and development phases – the cost would likely have been even lower, and they could have avoided the much higher cost of litigation.
3. Lawsuits can (and do) come from existing customers
In 2018, two cases filed in federal courts illustrated that legal risk isn’t only from so-called “surf-by lawsuits” – it also comes in the form of frustrated customers who simply want to access the same services as everyone else. In the cases against Morgan Stanley and TD Ameritrade, longstanding customers alleged that they were unable to use the companies’ websites. In both cases, the plaintiffs – who are blind, and rely on a screen reader to access online content – also alleged that they had attempted to reach out to the financial services companies about their issues before filing a formal complaint, without effect.
4. Automated testing results (good or bad) are correlated with risk of a digital accessibility lawsuit
ADA-focused plaintiffs’ attorneys are actively pursuing web-related claims, aware that the vast majority of corporate websites are not fully accessible. Demand letters are often boilerplate complaints, only citing issues that are easily caught by automated testing. They use free website evaluation tools to run an automated scan of an organization’s website, catching the “low hanging fruit” of accessibility issues and using those results in their complaint. For that reason, it’s a good idea for organizations to run their own automated accessibility check to get a high-level look at the most glaring issues on their site which could make them an easy target. An easy place to start is with a free scanning tool like webaccessibility.com.
5. Over half of legal and compliance officials are accelerating their accessibility compliance plans due to the growth in lawsuits
The 2019 State of Digital Accessibility Report published the results of a survey of 550 professionals across all sectors on the current state of accessibility in their organizations. In the survey, over 85% of legal and compliance officials said they want the ADA updated to include specific regulations for digital accessibility to reduce uncertainty about what is and is not compliant. In the meantime, 54.6% of those same respondents said that they were accelerating their accessibility initiatives now in order to mitigate legal risk.
6. You can control your organization’s compliance timeline
We often see settlement agreements and consent decrees with one- to two-year timelines for bringing a site (and sometimes mobile applications as well) into compliance with WCAG 2.0 AA standards. In reality, trying to get a system into compliance, and maintain it there, in anything less than two years is exceptionally difficult. A three- to five-year timeline is still challenging, but far more realistic. One viable alternative is for the organization to agree to bring key areas of the site into compliance in the shorter term and negotiate a longer remediation period for full conformance.
7. WCAG 2.0 AA is a choice—not a regulation—and you can ask for flexibility
To date, WCAG 2.0 Level AA requirements have been the default technical standards for most settlements. That noted, the use of the WCAG 2.0 AA requirements as a technical standard is a matter of settlement choice, not law. As such, it is advisable to ask for flexibility in a few areas related to the technical standards. For instance, you’ll want to future proof the agreement for any new regulations by adding the option to use those regulations on publication. Although updated ADA regulations from the DOJ are unlikely in the near future, they likely may be weaker than the technical standards in your settlement agreement.
In addition, certain portions of the WCAG requirements can reasonably be removed from the settlement without materially impacting the accessibility of the system on a practical basis. These requirements generally fit one of two profiles, in that they either have no material impact on the user experience, or they aren’t technically feasible in the current development environment. The scope of these carve outs, however, is relatively limited, but can be immensely helpful in focusing remediation and development activities.
8. Organizational structure requirements should focus on outcomes, not prescriptions
Every organization is unique. When it comes to negotiating requirements for organizational structure try to steer away from overly prescriptive language, while focusing on the outcome that will make both parties satisfied. For example, if the desired outcome is that the accessibility program delivers a quarterly report to stakeholders, that can be achieved in many ways. For a large organization, a full-time accessibility program manager may be needed. For smaller organizations, this could be accomplished by a person in another role or a group of people from across the organization.
9. Face-to-face meetings can buy you some flexibility in your timeline
Formal audits by a mutually agreeable third party with some ongoing cadence (quarterly, most often) of reports are standard to settlement agreements. Consider also having quarterly or twice a year face-to-face meetings to discuss your progress and engage users involved in the process. You’ll likely have a lot more success with flexibility if you can show actual, user-level progress on systems in these meetings. Additionally, documentation outlining your internal reporting processes (e.g., governance and reporting processes) will also go a long way in highlighting your organization’s commitment to accessibility.
10. A three-tiered training approach is the most cost effective
Settlement agreements typically require that the organization provide web accessibility training for development and content teams. For both cost and training efficacy, a reasonable approach to this requirement would be:
- A 30-minute, all-hands accessibility awareness training
- Role-specific trainings (content creators, developers, customer service)
- Opt-in advanced technical training (UX, iOS developers, QA etc.)
Aim for settlement language that defines the desired outcome of the training, not the specific type or approach. If both parties can agree to the outcome, there should be much latitude afforded in how to achieve it.
11. User testing is invaluable
Running regular automated testing on a recurring basis—at least quarterly—is a standard requirement, but automated testing alone doesn’t give you the full picture. Engaging real users with disabilities throughout the development and testing processes can be invaluable. For example, a site may not be at 100% technical compliance, but may still be effectively usable by people with disabilities. Being able to demonstrate usability can be helpful in bridging the gaps where the code may still need work, but the website or app is functional.
For additional information on this topic, check out this practical guide to navigating web accessibility demand letters and settlements.