Is Your Website At Risk of an Accessibility Lawsuit?

Sep 26, 2018

Web Accessibility

In 2015, The National Association of the Deaf (NAD) filed a class action lawsuit against Harvard University and MIT for failing to caption the videos available to the general public on their websites.

The universities argued that the case should be dismissed or postponed until the DOJ issues their regulations on website accessibility.  However, in November 2016, the Magistrate Judge ruled that the lawsuit should move forward.

Although it has yet to conclude, Harvard and MIT case has already become a significant win for those who stand for accessibility because it shows that judges are reluctant to dismiss web accessibility cases early on, and they will not wait for the DOJ web accessibility regulations to rule on cases. The outcome of the lawsuit could serve as a precedent that affects a wide range of industries.

While the Harvard and MIT lawsuit has gotten the most attention, the reality is that the case is just a ripple in the huge tide of web accessibility lawsuits that have been filed.

"There were at least 1053 of such lawsuits in the first six months of 2018, compared to 814 in all of 2017.", according to this post on Seyfarth Shaw's ADA Title III Blog.

 

All Organizations Are At Risk of an Accessibility Lawsuit

In his article about who is at risk, Josef Pevsner points out that many believe that their website isn’t at risk of a web accessibility lawsuit because of arguments like “we don’t have a brick and mortar store,” “we don’t fall under Section 508” or “we don’t fall under the ADA Title III.”

The reality is that every organization can be sued because of web accessibility. The regulations set to be issued by the DOJ might change this, such as only requiring accessible websites for websites of a certain size or revenue.  However, until those regulations are issued, it is up to the courts to decide.

With that said, there are certain types of websites which seem more vulnerable to web accessibility lawsuits.  The majority of the lawsuits have been filed against large retailers who have physical as well as online stores. However, as surely as the numbers of lawsuits filed increase, so are the types of industries they're filed against. Other consumer services, such as banks and real estate agencies, government agencies, and even web developers are part of the growing list.

 

What Happens If You Get Sued?

The good news is that, if you are sued because of ADA noncompliance and lose, the only penalty is that you will be forced to get in compliance and pay for the winning party’s attorney’s fees.   The ADA does not allow monetary damages to be awarded to the plaintiff in lawsuits brought by individuals.  For more on this, you can read Lesson 9: Enforcement of the ADA on the ADA.gov website.

Note, though, that the outcome can be different if the DOJ gets involved.  Individuals with disabilities can file complaints with the DOJ and the DOJ may in turn investigate.  If the DOJ decides to sue you, then you can face penalties of up to $75,000 for a first violation and up to $150,000 for a subsequent violation.

It is unclear what constitutes as a first violation.  As Lynn Calkins says in an interview with Forbes, we don't know if each page could count as a separate penalty.

Even if the DOJ doesn't get involved, it doesn't mean that the website owner won't face fines. In some states and localities there are laws which allow for damages to be assessed if the defendent loses the claim.

Beyond the penalties for violating the ADA, there are the legal fees and nuisance the lawsuit causes.  Considering this, it is no wonder that most web accessibility cases settle out of court. The risk/benefit of challenging the lawsuit probably isn’t worth it for most companies.

 

Should You Take Steps to Get in Compliance?

If you have a government website or your organization receives any funds from the government, then your website must be in compliance with Section 508.

As for private commercial organizations, the attitude seems to be, “we will ride it out hoping not to get sued until the DOJ issues its regulations.”

For some organizations, this approach might seemingly make sense.  However, even without weighing the costs of getting in compliance versus a lawsuit, change is inevitable.

The DOJ is bound to issue regulations which require all commercial websites to be accessible to people with disabilities.  It would be wise to get a jumpstart on this process by taking steps to improve accessibility – and protect oneself against lawsuits in the process.

Further, getting in compliance with web accessibility standards (which is currently Section 508 or WCAG 2.1), is good for business.  Statistics show that approximately 20% of online users have a disability.  Do you really want to bar 20% of potential customers from accessing your website?

Finally, it must be noted that it is nearly impossible to differentiate between accessibility and good user experience.   The same design components which make your website usable for users without disabilities – such as clear navigation and consistent design – will also make it accessible to users with disabilities.

The fear of a lawsuit might be what motivates you to get in compliance, but the real benefits are the expanded customer base and better website you gain as a result of making an accessible website.

Are you worried about a web accessibility lawsuit? Monsido helps make sure your website is in compliance with Section 508 or WCAG 2.1.  Learn more about the Monsido web accessibility tool here.

 

Disclaimer: 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.

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