So Many Web Accessibility Lawsuits: What Action You Should and Shouldn’t Take

August 3, 2017 |
Cryptzone releases Compliance Sheriff 5.0 Enabling Accessibility Validation for Dynamic and Mobile Websites

The Americans with Disabilities Act (ADA) was passed 27 years ago. A law based upon good intention, it’s now being hijacked to spread fear and suspicion.

The recent Winn-Dixie ADA case gives lawyers an instruction manual for successful litigation that is causing fear among retailers. As Ken Nakata has said in a past blog, the Court’s decision is well-reasoned and contains generally good advice that all retailers should follow. But that doesn’t stop fear from taking root and blossoming.

The Winn-Dixie case is interesting because it redraws the line between physical accommodation and online access to a service or product. The placement of this line is being left to the individual court decisions because the US Department of Justice has suspended rulemaking for the web. And no one wants to be the next Winn-Dixie.

Cue the drive-by lawsuits.

The ADA was intended to spread equal access throughout the nation, and many individuals have successfully used this law to drive positive change. In most states, the legal consequences are limited to remediation of the problem area, along with legal fees. Some states, such as California with their Unruh Act, add monetary penalties up to $4,000 per individual violation. As the law moves over into the online realm, technology makes it easier for the unscrupulous to take advantage of uncertain legal guidance and fear of litigation. There are businesses out there who use freely-available automated scanning tools to identify website accessibility postures and then threaten litigation. These threats often come in the form of ADA demand letters or Office of Civil Rights (OCR) complaints, and they frequently come associated with recommendations to “qualified” remediation or consulting companies. If the business uses such a “qualified” partner, the law firm will drop the suit.

It has become so easy for law firms and agencies to target any organization that happens to have a website, organizations tend to reach toward whatever seems to be a quick fix.

Quick remediation doesn’t protect against another lawsuit.

A website is a living thing, subject to change with new content and even with a different user, so a quick fix is no protection against another lawsuit. And remediating an existing website to become 100% WCAG 2.0 AA compliant can be expensive. We have seen some companies come to us for help after being threatened with lawsuits several times and also had customers who invested in automating web compliance only as a token effort to prevent lawsuits. Many such companies end up being sued several times before really examining what web accessibility means to the end user.

A better way is here.

Do not allow those drive-by threats from hungry agencies to scare you into an immediate pay-out. Don’t get me wrong – you do need to make your website accessible, but that drive-by lawsuit isn’t always based on a real problem. The automated tool used to rapidly generate errors is helpful in teaching how to repair a website, but an automated report is not enough for a prosecutor to win a lawsuit. Your first step should be to request more information to find out the exact complaint an individual with a disability has raised against your website.

Oftentimes the best defense is to start with a few small steps and build accessibility into the way the website is built and maintained. Think about why the ADA law was put into place. I like to believe that it’s not there to give money to lawyers, even though it seems that way sometimes. It’s supposed to encourage businesses and organizations to provide equal access to the entire population, and often, it achieves just that.

An economical path.

Cryptzone solution starts by examining the key transaction paths for a user’s journey through a website, or by responding to the specific complaints lodged against the organization. The primary goal of any web accessibility project must start with the person who most needs access. Often, budgets for remediation are slim at the start, and if the trigger was an ADA demand letter, there’s probably very little organizational buy-in on any ongoing project beyond the initial remediation effort. Therefore, it’s important to use the time, money, and energy in the most efficient manner.

Our experts deliver solutions tailored for an organization’s industry, risk and budget. By combining automated scanning tools with human evaluation of key scenarios, we have been able to craft paths for our clients to remediate the most important aspects and to learn and incorporate accessible design techniques into their web development lifecycles. One of the most useful things any website owner can start with is an Accessibility Statement outlining the approach the organization intends to take to correct and accommodate all users. Our experts can also help align such a statement with the guidance they give, resulting in a better and more responsive experience for all end users of the website. An Accessibility Statement is a simple step that goes a long way to defending against a lawsuit and providing the best end user experience, resulting in reduced risk and improved customer loyalty.

The good news is that protecting against future lawsuits is a goal that’s usually well aligned with providing equal access to goods and services. We help organizations learn accessible development habits that serve a dual purpose of providing equal access for end users and minimizing the risk of future litigation.

For more advice on solving basic, inaccessibility features, download the whitepaper on Four Key Issues that Attract Web Accessibility Litigation (And How to Solve Them) for a brief overview of some of the litigation that is driving organizations to take web accessibility seriously. It offers information on additional accessibility violations that almost all complaint letters include and advice on how to solve them.

Four-Key-Issues that Attract Web Accessibility Litigiation and how to solve them. Download the whitepaper button

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Diana South

As Senior Product Marketing Manager, Diana South is responsible for Cryptzone’s data loss prevention and digital accessibility solutions. Diana brings over 20 years of experience with enterprise software to help organizations provide equal and secure access for their users, delivering products that become integral to the customers' business.

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