Mitigating the Risk of Digital Accessibility Lawsuits

November 29, 2018 BY JACLYN LEDUC
Updated: July 2, 2019

In 2017, federal digital accessibility lawsuits reached 800, and they didn’t slow down. By mid-2018, the number of digital accessibility lawsuits had already surpassed that of 2017.

More and more, business is being conducted online and the importance of digital accessibility is growing. In the webinar, How to Mitigate the Risk of an Accessibility Lawsuit, Kristina Launey, a partner at Seyfarth Shaw LLP, discusses the current legal landscape of online accessibility and discusses best practices for creating accessible websites which will help mitigate the risk of getting sued.

The State of Accessibility Laws

Are there any current laws which require a business to have an accessibility website?

The Rehabilitation Act states requirements for website accessibility: Section 504 applies to federally funded programs, and Section 508, which explicitly requires compliance with WCAG 2.0 standards, applies to federal agencies and often extends to federally funded programs.

In addition, the Air Carrier Access Act requires airlines’ websites to conform to WCAG 2.0 AA standards.

There are several other accessibility laws that apply to places of public accommodations like the Americans with Disabilities Act (ADA) and various state non-discrimination acts, but these laws don’t specifically address digital accessibility. While the ADA doesn’t address digital accessibility, “places of public accommodations” has been extended to the web through thousands of lawsuits and agreements.

Past & Current Digital Accessibility Lawsuits

Currently, there’s no standard in the ADA that states that a website must meet certain requirements to be considered compliant. In 2010, the Department of Justice (DOJ) issued an Advance Notice of Proposed Rulemaking which would address web accessibility regulations and answer specific questions regarding digital accessibility. Since then, this proposed rulemaking has been taken off the active list, leaving questions regarding website accessibility unanswered.

Plaintiffs claim that inaccessible websites violate the ADA’s general principle that public accommodations must provide equal access to those with disabilities, and must also provide auxiliary aids at no extra charge. The vast majority of courts involved with digital accessibility lawsuits have agreed with this stance.

A common misconception on the part of companies and organizations is that it’s enough to make accommodations upon request. To be clear, accommodations do not equal accessibility. Companies must offer an equivalent experience to everyone across all fronts, ensuring that the content and design provides an all-encompassing experience for all users including those with a disability.

Companies have a proactive obligation to make sure their products, services, and information are always universally accessible." -Kristina Launey

Lawsuits That Have Paved the Way

The following digital accessibility lawsuits are a small fraction of the total lawsuits which have taken place, but they have made a major impact on the current digital accessibility landscape. The rulings of these lawsuits have helped to trace the beginning of a path towards digital accessibility legal standards.

NAD vs. Netflix (DMA 2012)

In NAD vs. Netflix case, the court ruled that a website with no nexus to a physical place is still considered a “place” of public accommodation.

Davis vs. BMI/BND Travelware (CA State Court 2016)

This case was significant because the court gave its dispositive opinion that an inaccessible website does discriminate against blind people and violates California law.

Gil vs. Winn Dixie (SDFL 2017)

Learn more about accessibility lawsuits

The Gil vs. Winn Dixie accessibility lawsuit was the first to proceed to trial with the verdict in favor of the plaintiff. The court ruled that third-party content must be accessible and required the grocer to update their website to adhere to WCAG 2.0 AA standards.

Markett vs. Five Guys (SDNY 2017)

The court ruling for this case showed that even if a company is working towards accessibility, they are still liable to get sued. After Five Guys asked for dismissal of the case on these grounds, the court didn’t dismiss the case.

Who’s at Risk to Get Sued?

If you’re a public-facing company, then you’re at risk to get sued for accessibility. What are some of the consequences of being sued? Several settlements have led to remedies such as civil penalties upward of $150,000, damages for aggrieved persons, and obligation to make the website accessible, not to mention attorneys’ fees and costs.

Mitigating the Risks for Accessibility Lawsuits

Without a legally required standard, what should companies follow? Currently, the best standard for companies to hold themselves to is WCAG 2.0 or 2.1 AA standards. These guidelines provide standards on how to design, code, and structure internet technology in order to ensure it’s accessible for all.

"WCAG 2.0 AA is considered the de facto standard for accessibility." -Kristina Launey

5 Steps to Reducing Risk

With the risk of being sued for a lack of digital accessibility, there are several proactive steps which companies may take to avoid lawsuits.

  1. Inventory All Public Facing Website(s): It’s important to take inventory of all public facing websites because a company needs to know what it’s working with in order to move towards making it accessible. Note: Inventory should also include any mobile apps.
  2. Identify and Prioritize Key Web Pages: With this best practice, companies should determine which pages have high visibility and traffic and pinpoint pages that represent the core purpose of the website (i.e. an online retailer should prioritize making product and checkout pages accessible). This is where looking at website metrics comes in handy.
  3. Contact a Digital Accessibility Consultant: After taking inventory and prioritizing pages, next steps should involve performing a website audit to determine the company’s current state of accessibility. After discovering problem areas, the company should move to remediate those issues. Seeking help from an experienced digital accessibility consultant is often crucial since they know exactly what to look for in digital accessibility audits and can offer advice on how to remediate problem areas. Finally, companies should make time for retesting to ensure nothing was missed or done incorrectly.
  4. Train Employees: The practice of training employees on how to implement accessibility into their roles is perhaps the most important part of sustaining accessibility within a company. The IT department, responsible for building and maintaining web pages, should be trained in accessible practices. Other groups responsible for creating company content should also be knowledgeable about things like making an accessible document. Spreading accessibility awareness company-wide helps to encourage cultural adoption and support of accessibility.
  5. Adopt Policies and Procedures: All companies should adopt internal policies and procedures to help maintain accessibility. The policy should state a company’s commitment to accessibility and to making websites and mobile apps accessible. In addition, the policy should include accessibility standards which the company will strive to meet (like WCAG 2.0 AA) and how the company plans to maintain the site in an accessible manner. Once a company has a defined accessibility policy, they should then post it on their public facing website along with contact information.

5 Steps to Reduce Your Risk of an Accessibility Lawsuit

The current reality is that there’s no solid ground to stand on in terms of web digital accessibility lawsuits. Due to the lack of clarity in the law, courts are left to make decisions based on past court rulings and the evidence presented. If a company gets slammed with a lawsuit, it truly could go either way.

Watch the full webinar below!

This blog post is written for educational and general information purposes only and does not constitute specific legal advice. This blog should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

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