The recent surge of ADA demand letters for inaccessible websites is causing a frenzy of panic among webmasters and website admins. As reported in a recent Wall Street Journal article, more than 240 web accessibility cases were brought to federal court from the start of 2015 until October 2016. In addition, hundreds or even thousands of demand letters have likely been sent.
Ideally, businesses and organizations should start building accessible websites before they receive a demand letter. However, web accessibility can be a slow process. Even if your team is actively working on accessibility, you could still receive a demand letter. While this information should not be construed as legal advice, here are the general steps which should be taken after receiving a web accessibility demand letter.
Understand That This Isn’t About Money - It is About Access
The United States has a reputation for being quick to sue for damages and frivolous lawsuits have certainly been used many times by plaintiffs seeking financial gain. This is not the case with plaintiffs who bring about web accessibility cases.
Under the ADA, individuals who bring lawsuits are not allowed to receive monetary awards. Thus, the motivating factor for plaintiffs in ADA accessibility cases is simply that they want access.
Jonathan Lazar, who works with the National Federation of the Blind, told The Daily Dot that the organization’s goal is compliance, not litigation.
"No company that is actively working toward compliance, working with the National Federation for the Blind, is going to be sued,” said Lazar. “It's always the best option long-term to make your website compliant on its own. You gain customers and avoid legal trouble. It's a win-win."
However, Lawsuits Are a Cash Cow for Attorneys
While plaintiffs cannot receive monetary awards for lawsuits, they are entitled to reimbursement for legal fees and expenses. The law was written like this so individuals wouldn’t be discouraged from filing suits because they couldn’t afford the legal fees.
As Laura Zaroski, an attorney who specializes in cyber liability, writes in her LinkedIn blog post Accessibility Lawsuits Are Coming, Are You Prepared?, lawsuits related to website accessibility could be the next cash cow for attorneys.
The WSJ article also furthers this notion by quoting a defense lawyer at GrayRobinson PA in Miami as saying that the lawsuits are a “legal-fee shakedown” by “entrepreneurial lawyers.”
It should be noted that ADA lawsuits are a real dilemma for people with disabilities. As one man with a disability talks about in this editorial post for abc15.com, “The high volume of lawsuits is giving the ADA a black eye and businesses are shamelessly fighting back.”
Do Not Ignore the Demand Letter
The irony of ADA accessibility lawsuits is that the plaintiffs want to be customers, but are unable to become customers because of accessibility issues. This is incredibly frustrating for people with disabilities. Ignored, they feel that the only way to get companies to take action is to file a lawsuit.
The cases of Bob Cohen and Joe Houston, as reported in an article at the Sun Sentinel about disability lawsuits, detail this frustration.
Cohen, who heads the group Access for the Disabled, has been a plaintiff in more than 375 ADA accessibility lawsuits. Houston runs the accessibility nonprofit Access 4 All and has been a plaintiff in over 200 lawsuits.
Both Cohen and Houston say that letter-writing campaigns don’t work.
"We tried for five years nothing but letters and personal phone contacts with restaurants and hotels, and we got no place,” said Cohen. “We got extremely frustrated with the lack of cooperation."
"The properties ignore the law," Houston said. "They are aware of it, but they do nothing until a lawsuit is brought up."
So do not ignore a complaint or demand letter about website accessibility. It will only add to the frustration and likely result in a lawsuit being filed.
Likewise, make sure your customer support staff is trained to handle any complaints about web accessibility so customers with disabilities feel like their concerns are being acknowledged and don’t need to resort to demand letters and litigation.
Consult Your Attorney
As web accessibility consultant Karl Groves says, if your lawyer tells you to ignore a demand letter, then you should find a new lawyer!
Web accessibility cases are not going away, and past web accessibility lawsuits show that the courts are taking them very seriously.
When consulting your attorney, you will want to discuss when and how to respond to the demand letter.
Further, make sure your attorney looks over any applicable contracts to see if anyone else is liable for the violation and what the terms are for notifying parties of the breach of contract. For example, your web development company or contracted designers may be fully or partly liable.
Answer the Letter
Not only should you pay heed to the demand letter, but you need to answer it promptly so the parties know you are taking their complaint seriously. Responding to the letter shows good faith. If you do not reply to the letter, you will probably be sued within 90 days.
Get a Website Audit
There are now numerous services which can give you a “report card scan” of how your website is doing in terms of accessibility. While these scans can be very helpful, there are some aspects of web accessibility which require a real-human check. For more on this, the World Wide Web Consortium (W3C) has a great Wiki page on accessibility testing.
Remedy the Website
Whether you decide to fight in court or not, the reality is that your website will eventually have to get in compliance. The DOJ released guidelines on web accessibility in 2018 and they have been very clear – such as in their state of interest in the case against Harvard and MIT – that the ADA applies to websites.
However, do not immediately start changing your website. As the law firm Fredrikson & Byron, P.A. advises, you should consult your legal counsel before making any changes as changes could be perceived as destroying evidence.
Getting into compliance isn’t as gargantuan of a task as many media reports would have you think. However, it is going to take some time and coordinated effort from various departments of your web team.
Are you worried about a web accessibility lawsuit? Monsido makes a tool which helps you get your website in compliance with Section 508 or WCAG 2.0. Learn more about the Monsido web accessibility tool here.
The information in this article is made available by Monsido ApS and/or its subsidiaries and affiliates and is for informational purposes only so as to provide its customers with a general understanding of current legal developments. It should not be construed as providing specific legal advice, and you acknowledge that no attorney/client relationship exists between you or any third party and Monsido ApS and/or its subsidiaries and affiliates. This article should not be used as a substitute for competent legal advice from a licensed lawyer in your jurisdiction.