In our recent webinar, “Responding to Web Accessibility Legal Claims”, Brian McGovern, Partner at iMedia Inc. joined Kris Rivenburgh, Chief Accessibility & Legal Officer at eSSENTIAL Accessibility in exploring the often complex landscape of ADA web accessibility demand letters and legal claims. We’ve gathered together some of the key takeaways from the webinar.
Legal Disclaimer: As with the webinar presentation, the content provided in this blog post is for informational purposes only, and does not constitute legal advice.
Brief Overview of Current Legal Landscape as it Pertains to Disability
The ADA (American with Disabilities Act) and Title III
Title III of the ADA requires that places of public accommodation be accessible. The ADA became law before the widespread adoption of the Internet. Examples of places of public accommodation include hotels, restaurants, retail stores, office buildings, etc. However, because websites, mobile apps, and the digital world have since become so entwined with our daily lives, the DOJ and U.S. courts have interpreted places of public accommodation to include websites and apps whether as extensions of a physical location or as sole entities.
Best Practice for Compliance
Because the ADA doesn’t provide requirements, the Web Content Accessibility Guidelines (WCAG) have consistently been referenced by the DOJ and courts as a way to evaluate accessibility. WCAG conformance is considered the best practice for digital compliance.
WCAG is Not the Law
While WCAG standards are widely considered to be best practice for web accessibility, conformance to WCAG is not mandated by the ADA. Entities have flexibility in determining how to make their websites accessible. This is important to keep in mind as plaintiffs’ lawyers will often anchor their complaints to WCAG standards, but a technical failure under WCAG standards does not necessarily mean that a website is inaccessible or discriminatory.
Who is Targeted by Web Accessibility Lawsuits and Demand Letters?
An April 2021 sampling of lawsuits shows plaintiffs targeted any number of niches and industries. Among the targets were websites for cell phone cases, barbers, tourism, payment processing, clothes for pets, candy, and paper. The key takeaway is digital accessibility litigation affects a wide range of organizations and industries.
Common Litigation Paths
Digital accessibility litigation follows one of the three paths:
- Lawsuit filed
- Demand letter is sent and resolved one way or another
- Demand letter sent, followed by a lawsuit.
What is a Demand Letter?
An ADA web accessibility demand letter is a document that:
- Makes a legal claim
- Demands Action or compensation
What does a demand letter look like?
All of these are not included in every ADA web accessibility demand letter, but common characteristics include:
- Law Firm logo
- Law firm contact
- Your info/address
- Re: ADA/web accessibility
- Greeting (“To whom it may concern…”)
What to do?
Contact an Attorney
While it may be a cliché, retaining counsel is always recommended.
With deference to your attorney’s advice, you may want to address the accessibility issues specified in your claim as a next step.
Accessibility Issues Most Often Seen in Litigation (Lawsuits)
After you address issues brought forth by litigation, consider looking into other commonly named accessibility issues in lawsuits. Here are issues commonly claimed in lawsuits:
- 1.1.1 – Alt text, text labels
- 1.2.2 – Captions for pre-recorded video
- 1.4.3 – Text color contrast
- 2.4.1 – Skip navigation link is available
- 2.4.2 – Each page has a title
- 4.1.2 – Name, role, the value supplied
Automated Scan Issues
Automated scans such as WebAIM’s WAVE tool are also frequently the basis for plaintiffs’ claims. There is a lot of overlap with the issues returned from an auto-scan and the most litigious issues listed above. Addressing both the common claims and any WAVE errors and alerts is another great step.
Concentrate on Primary User Flows
The pages and functions that are most often accessed and interacted with by visitors to your website are also very important to address. Commonly, these include:
- Home pages
- Product pages
- Checkout processes
- Account dashboards
- Blog posts
How Can a Digital Accessibility Partner Help?
When dealing with web accessibility legal claims, having the assistance of experts can be crucial. A digital accessibility partner can help with:
- Assessment of claims: Are they true? How many are there? What is the practical effect (vs. WCAG assessment failure)? As previously mentioned, a lack of conformance to a WCAG standard does not necessarily equate to a barrier to access. While proving such may not make a legal claim go away, it can definitely mitigate settlement fines, etc.
- Independently issued expert documentation.
- Information/experience. Expert user-testing with AT can help with responding to claims.
Think of an accessibility company as a support to your counsel, not as your counsel. Your accessibility company does not make your decisions – that’s between you and your counsel.
- Multiple demand letters and lawsuits are possible. Just because you settle or address the issues in one, doesn’t mean you won’t receive another.
- Nature of litigation – most are opportunistic, but some are genuine
- An attorney experienced in this space can save time and money. Not every ADA defense attorney will be experienced in the digital space. At eA, we work with law firms that are very experienced in digital accessibility, and they know the different nuances between different plaintiff’s firms, typical settlement amounts, etc.
When it comes to settlement terms, you should pay close attention to what you agree to. Money will always be a key component of any settlement terms, but other terms are important beyond that. Important terms can include remediation, mandatory reporting, periodic assessments, and other items.
While defending against litigation is generally undesirable, there can be a potential upside to settling, including:
- Limited settlement amounts. Plaintiffs’ lawyers’ settlement amounts in digital accessibility litigation have seemingly decreased over time.
- Litigation acts as an impetus to address web accessibility sooner, rather than later.
- Making accessibility a part of your ongoing process.
- Benefits beyond compliance such as improved UX, broader audience reach, and increased brand value.
The ambiguity around digital accessibility compliance means there’s little certainty should you want to pursue a defense in court. Minor WCAG failures don’t constitute discrimination, but it’s a gray area, and website owners can, and often have been held responsible by courts.
A Few Bonus Takeaways:
- While the ADA was the focus of our webinar, it’s important to note that global regulations are increasingly being passed and enforced. WCAG is almost always the technical standard incorporated into law.
- Even if your content is not publicly viewable, it may still be subject to anti-discrimination laws.
- The recent 11th District ruling in the Winn-Dixie appeal only affects federal courts in Alabama, Florida, and Georgia.
- Overlays are not a solution.