Q&A: Can You Get Sued Even If You Are Working Towards Accessibility?

In 2017, 814 federal lawsuits were brought against inaccessible websites.

Ensuring your online website is accessible is more important than ever before. Yet, many organizations are still unsure about how to make their websites accessible or what guidelines they should be following.

In the webinar, Why Your Inaccessible Website Could Get You Sued & How To Prevent It, we sat down with Ken Nakata, Director of Accessibility Consulting at Cyxtera Technologies and former senior trial attorney for the US Department of Justice. He talked about the prevalence of online accessibility lawsuits and gave recommendations on how you can start improving your website’s accessibility today.

Below is a snippet from the Q&A portion.

We know the public side of websites need to be accessible, but what about the requirement for content behind a login. Does it need to be always accessible, or can we wait for a request for an accommodation?

KEN NAKATA: You should try to make it always accessible. But your risk exposure is a lot lower because you’re probably not going to get a drive-by plaintiff suing you. On the other hand, the exposure could be greater, because in employment cases, you get emotional distress, and you get all these other elements in employment litigation that juries tend to award big awards for. So there are two competing forces there when we’re talking about stuff that’s only accessed by employees.

Can someone file a lawsuit against a website immediately, or do they have to request that the company update their site first?

KEN NAKATA: They can file a suit with you directly. In fact, that’s some of those requirements about timing, and lawsuits and things like that are controlled by the local rules in each district. But from what I’ve seen in New York, they tend to shoot first and ask questions later. In fact, a lot of those cases, the first time that the company ever hears about it is when they’re getting served a summons.

What should everyone do on day one when implementing accessibility?

KEN NAKATA: I think that creating an accessibility statement should be number-one thing.

What are some of the award sizes being handed out in these lawsuits that win?

KEN NAKATA: Most of these cases never see trial. They always settle pretrial. In fact, only two cases that have gone into federal court have gone all the way to trial, or to a dispositive stage, by the judge. One of them was Gil versus Winn-Dixie.

In Gil, the damages weren’t that significant because the ADA doesn’t allow for the award of things like emotional distress, or punitive damages or anything like that like you’d have in a typical torts case, like a product liability case. By contrast, if you do have a case in California, however, you end up with the Unruh Act, which has liquidated damages of $4,000 per claim. There, you can get into some significant damages.

So the case we all know about is the NFB versus Target case, where they ended up settling for $6 million. $6 million was a lot of money, it seems. But in actuality, it’s actually quite small compared to what their potential exposure was given the fact that they had a class action. And each member of that class is entitled to $4,000. And if you just add up the number of plaintiffs that you have in California in a class action, it can easily get to a sizable amount of money.

And then there’s also the question about, well, what constitutes a claim? Is it every time that you file a lawsuit? Is it every time you encounter a barrier on a website? Or is it every time that you can’t do a whole transaction? What does it mean? There’s been a little bit of clarity added recently by California’s Superior Court opinion, but it certainly isn’t dispositive of the issue. And we don’t really have much guidance.

So if you get sued in California, potential damages are huge. If you get sued anywhere else, potential damages are actually not that huge. Nevertheless, you don’t want one of these things. You will end up paying a fortune in attorneys’ fees.

WCAG 2.1 recently came out. Should we develop any test to– or should we develop and test to 2.1 instead of 2.0? Or is 2.1 used as a standard in any litigation?

KEN NAKATA: 2.1 hasn’t been used in litigation yet. W3C’s still working on the techniques and guidance that’s associated with the techniques that were added under 2.1.

If you meet 2.0, don’t worry. Your effort has not been in vain. It’s already gone a long way towards meeting 2.1. And so I’d say go for 2.0 right now. Then as a later-on project, make 2.1 the next goal once all the techniques are fleshed out.

Can we get sued for accessibility even if we are currently working on accessibility?

KEN NAKATA: There was a case recently involving Hooters restaurant where they settled a case with one attorney and were working on improving the accessibility in order to meet the terms of the settlement agreement that they reached with that attorney. And then another attorney came along and sued them again for web accessibility.

And they said, your honor, “The second case should be dismissed because we’re already working on accessibility to satisfy the first attorney.”

The 11th Circuit, which is an appellate court, obviously, said, “Sorry, the second lawsuit can proceed because the second attorney has no stake in what you agreed to in the first lawsuit. Unless you’ve achieved WCAG 2.0 and can show that all the second attorney’s claims are moot – because they’ve already been addressed and have already been fixed – you’re still under the gun.”

So you still can easily get sued by another person.

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Watch the full webinar below!