How to protect your organization from website accessibility disputes
Virtually every business establishment these days knows that they need to have a web presence to be a commercially viable business. But what many business owners don’t realize is that their websites can put them at significant legal risk, including becoming the target of accessibility lawsuits.
Title III of the Americans with Disabilities Act (ADA) prohibits discrimination against people with disabilities by businesses open to the public.(1) Poorly designed websites can create accessibility barriers for the visually impaired and other people with disabilities, thereby preventing their full and equal enjoyment of the organization’s goods and/or services. The number of websites targeted by website accessibility claims continues to rise, with no indication that they will slow down in the near future. According to UsableNet, more than 4,000 such lawsuits were filed in state and federal courts in 2021, with more than 10 lawsuits filed every day. (2) The vast majority of claims are filed in California, New York and Florida. E-commerce sites account for nearly 74% of these disputes(3). Most of these disputes are brought by a small number of plaintiff law firms representing visually impaired consumers.
On March 18, 2022, the U.S. Department of Justice (“DOJ”) for the first time provided guidance on how companies can make their websites publicly available under the ADA, but did not adopted a regulatory standard for what constitutes “accessible”. (4) (DOJ guidance on website accessibility can be found here.) The DOJ leaves it up to state and local governments to determine whether a website is ADA-compliant. Due to the lack of detailed formal standards regarding ADA website compliance and limited case law on the issue, a cottage industry has emerged, often with results favorable to complainants. Notably, multiple website accessibility lawsuits can be brought against a single company. The fact that an accessibility complaint has already been filed against a business does not preclude plaintiff law firms from pursuing additional accessibility lawsuits against the same business. Indeed, nearly 500 of the 4,000 lawsuits (or 15%) filed in 2021 were against companies that had previously been the subject of complaints about website accessibility.(5) Complaining companies are also starting to target apps mobiles with ADA accessibility claims.
The legal regimes currently in place and the lack of applicable case law (given that the vast majority of these cases are settled) allow plaintiffs’ companies to continue to bring these types of claims, regardless of their merits, in part thanks to the legal incentives created by the possibility of recovering the fees of their lawyers. In California, cases are generally brought under the California Unruh Civil Rights Act (“Unruh Act”),(6) which is broader than the federal ADA. The Unruh Act aims to deter discrimination by “all commercial establishments of any kind”, while ADA Title III aims to prevent discrimination in a “place of public accommodation”. A finding of a violation of Title III of the ADA results in an award of injunctive relief and attorneys’ fees, but not compensatory damages to remedy the violation. In contrast, under the Unruh Law, the plaintiff is entitled to recover actual damages and an amount of up to three times the actual damages for each violation, or alternatively, statutory minimum damages of 4,000, $00 per violation plus attorney’s fees.(7) A violation of the ADA is also a violation of Unruh.(8)
Website accessibility complaints are typically preceded by a formal notice to the website owner, followed by a settlement proposal that includes the company’s agreement to improve website accessibility and payment of the plaintiff’s attorney’s fees and expenses.
As we become increasingly dependent on access to services via the Internet, it is important that companies implement policies to ensure that their websites are accessible to people with disabilities. Below are five quick tips for accomplishing this task while helping to protect your business from a website accessibility claim:
1. Audit your website to ensure that it meets current industry standards as set out in the Web Content Accessibility Guidelines (“WCAG”) 2.1 or later as published by the Web Accessibility Initiative of the World Wide Web Consortium. Any audit should include a manual, in-person audit of your website to identify potential barriers to access. For example, visually impaired users use screen reader software to browse the Internet (eg, NVDA, JAWS, and VoiceOver). Make sure the audit you perform includes testing of the website using screen reading software by a visually impaired user.
2. Address and correct any accessibility issues revealed by the audit, especially those in high traffic areas of the website (e.g. homepage, registration, shopping interface and key content pages). These fixes should include, but certainly not be limited to, issues regarding poor color contrast, alt text for images, and captions for videos. Try to keep website layouts consistent.
3. Adopt and maintain a policy to ensure that your website remains accessible as updates are made to the website over time. This includes periodic website audits, testing by people with disabilities, and accessibility training for web page and content developers.
4. Add an accessibility statement to your website with a trusted method for users to contact you (e.g. phone number or email address on your homepage) if they encounter accessibility issues on the site.
5. Avoid automated software solutions that claim to be able to keep your website accessible without any human testing or monitoring. These are band-aid solutions that often fail to ensure actual WCAG and ADA compliance. Nothing replaces manual testing.
If you receive a website accessibility request letter, don’t ignore it. Consult an attorney experienced in website accessibility requests to help you.
(1) Title III of the ADA applies to, among other things, retail businesses, banks, hotels, hospitals, restaurants, theaters and sports arenas.
(2) UsableNet’s 2021 Year-End Report is available here
(4) To see https://www.justice.gov/opa/pr/justice-department-issues-web-accessibility-guidance-under-americans-disabilities-act.
(6) Cal. Civil. Code § 51 and following.
(7) Cal. Civil. Code § 52(a).
(8) Lawyers for plaintiffs who file claims under the Unruh Act have argued (with some success) that repeat visits to a website constitute multiple violations.