Awareness of ADA Legal Threat Grows. What Businesses Need to Know.

What Businesses Need to Know to Avoid Website Accessibility / ADA Suits and Demand Letters

 

On November 1, 2016 the Wall Street Journal ran Companies Face Lawsuits Over Website Accessibility For Blind Users. Based on the story’s comment thread, this is a shocking surprise to most. While the story discloses 240 businesses sued so far, what’s missed are the likely thousands of others that have been hit with demand letters that threaten suit. This is a story that has been slow to surface because any business that gets hit doesn’t want anyone to find out. It’s not good business to be perceived as anti-accessibility.

Yet the word is getting out that the American Disabilities Act applies to all business websites now. A key source of this awareness has not been from the press, it’s been from trade organizations and regional business groups. They have the confidence of their members and serve as their key advocates and guides. In our case, we’re quite involved with the National Ski Area Association, and this trade group rapidly responded when a number of resorts got hit with both demand letters and lawsuits by issuing warnings to members, and subsequently ran education seminars at conferences. Down-trail, regional ski resort associations picked up on the urgency of the topic and ran education seminars throughout the spring, summer and fall. I jumped in myself, and along with NSAA’s head of regulatory/legal affairs, Dave Byrd, held seminars to educate members of the context and risks, and then provide pragmatic guidance for both improving accessibility and reducing legal exposure.

But most businesses will be caught in the headlights at this point.
 

SO WHAT DO BUSINESSES NEED TO KNOW TO AVOID ADA LEGAL THREATS?

  • The ADA requires that “places of public accommodation” be accessible to people with disabilities. Today, the DOJ and most courts agree that the Web is considered a place of public accommodation. As such, access to web content by those with disabilities is a civil right.
     
  • People with visual disabilities are the most impacted. They use screen readers that read web content, but these can be easily hampered by websites that are not coded correctly.
     
  • There is no legal “standard”, but there are guidelines: Web Content Accessibility Guidelines (WCAG). Created by the World Wide Web Consortium, these guidelines are commonly adopted world-wide.
     
  • Your web developer is not to blame - unless they contractually agreed to meet such guidelines. Also, a most common violation is to not add image labels (alt tags) to images, and often, this is the fault of internal content contributors.
     
  • The average cost of suits according to the Wall Street Journal is $10K-$70K - most of which covers plaintiff legal fees (plaintiff’s themselves cannot collect), plus legal defense fees ($10K-$70K), plus audit & remediation ($15K-$who knows), plus subsequent periodic audits and remediation.
     
  • While the WSJ reports that 240 businesses have been sued, the much bigger number are those that have received demand letters and have been forced to settle or get sued. Yes, many also call this extortion.
     
  • This new cottage industry is growing rapidly. It will explode and reach businesses of all sizes.
 

WHY AM I SO SURE ABOUT THIS?

First read this story in the Florida Record about Dion Snowshoes getting hit. This is a tiny mom & pop business based in Vermont. Yet the plaintiff firm is located in Florida. Everyone is a target.

But here is the real reason... First, consider how common ADA claims have been for physical barriers. Those required a “tester” to physically go to the location and record violations.  What’s different here is that these testers simply use free software to test for website ADA compliance. They can generate demand letters or suits from a computer anywhere (even India) - in volume - and at little cost. Plus, there is no secret sauce or intellectual property rights to this business model. So the barrier of entry for copy-cat plaintiff firms is nil. And if it’s true that lawyers love money, this is a printing press.

 
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