The word is getting out that the ADA applies to all websites now. On Nov 1, 2016, the Wall Street Journal published Companies Face Lawsuits Over Website Accessibility For Blind Users. The story reveals 240 businesses sued so far, but misses the scourge of demand letters that pose the most tangible threat to businesses.
Such letters threaten suit over ADA “compliance failures”, unless the website owner agrees to the draft settlement that accompanies these duplicate form letters. See a sample settlement which naturally includes payment of “reasonable attorney’s fees and costs”.
Although the number is not known, it’s likely that thousands of these nearly duplicate letters have gone out to businesses across the country. These letters commonly include
- Claims that “prominent national experts” have determined that the company’s website “has significant failures which limit accessibility for individuals with various disabilities.”
- Discourage businesses from hiring their own experts because “most (if not all) of the most reputable national experts are back-logged as a result of our clients’ web accessibility efforts.”
- Failure to explain what the alleged failures are and the legal basis for the claim.
- Failure to name a plaintiff.
- Suggest that the companies may also be violating privacy laws and engaging in wrongful data collection practices.
This one is my favorite:
News of these practices have been slow to reach businesses. One obvious reason is because businesses that do get hit don’t want people to find out. It’s not good business to be perceived as anti-accessibility. In many cases, trade and regional business groups have provided awareness to their members. In most cases though, businesses will be caught completely off-guard when they receive such a letter.
So what do businesses need to know?
- 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 is this so likely to become a very big deal?
But here is the real reason why this is going to blow up.
First, consider how common ADA claims have been for physical barriers. Those required a “tester” to physically go to the location and record violations. Now, what’s different here is that these testers use 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 plaintiff firms is nil. And if it’s true that lawyers love money, this is a printing press.
- Browse our Accessibility.works blog. This has tons of tips and resources, such as:
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