Website Accessibility and Lawsuits

The ADA was drafted in the late 1980's and signed into law in 1990. It is sweeping legislation that affords various protections to people with disabilities, not too unlike how the Civil Rights Act of 1964 made it illegal to discriminate against people based on many of their immutable and intrinsic qualities.

The goal of the law is a noble one and we're a better, more inclusive, and accommodating country because of it. I mean, who among us believes that society isn't improved by the accommodations made for those with various disabilities, the removal of needless barriers?

IANAL

First up: I'm an I.T. geek, not a lawyer. Nothing on this page should be considered legal advice.

Unfortunately, the laws of man are usually imperfect, rife with unforeseen, or at the very least, underappreciated side-effects and consequences. And the ADA is no different. Countless places of businesses have been sued for non-compliance with the ADA for all manner of violations, even today, some 30-plus years later.

 

Among all those lawsuits, a fair chunk of them are extortionary and opportunistic -- plaintiffs, suffering no real legitimate injury (in the legal sense) and their attorneys looking for a payday from clueless business owners because a handrail was at the wrong height, an isle not at the required minimum width, a non-compliant restroom, insufficient handicapped parking, or a thousand other reasons.

Fast forward well into the internet age and witness the same lawsuit abuse happening in the digital realm. Plaintiff's attorneys are going after the owners of all kinds of websites that are not "ADA compliant". I scare-quoted that because the ADA, being a product drafted in the late 1980s, is completely silent on how websites should be designed. It does mention "auxiliary aids" in communications -- at the time meaning audio description for the blind on videos.

Indeed, the silence regarding websites is being interpreted by courts as not exempting them from compliance requirements for a "public accommodation". And plaintiff's attorneys are winning civil lawsuits left and right against owners of websites that are not accessible to those with disabilities that affect how they access the internet.

In 2018, there were some 2,300 ADA website lawsuits filed in the federal courts in the US, an increase of 181 percent from 2017. More on that here. That number is sure to rise.

It's turning into a cash cow for unethical attorneys as there are millions of websites all fresh for picking. The majority of these cases are settled for a 4 digit or low 5 digit sum. Low enough not be financially ruinous (usually) for the defendant but plenty high enough to be worth it for attorneys and their dubiously injured clients.

To be sure, there are legitimate lawsuits being filed against businesses who have thumbed their nose at the ADA or website accessibility standards. And I support those plaintiffs who truly are injured by the callous disregard of such defendants. But too many suits are being filed against hapless website owners that had no idea that website accessibility was even a thing or where there was no legitimate (legal) injury.

It's pretty hard to design and construct a building today and not know about ADA requirements. ADA training is baked-in with architects, contractors, licensing agencies, permit approval agencies, insurance companies, and all down the line. But none of that's true where websites are concerned. Like much of the online world, there's no regulatory body to ensure websites are fully accessible. Even many web designers are unaware that accessibility is a thing so how are their hapless clients to know?

Breaking a law that offers no guidance on how not to break it

Because the ADA is silent on website compliance, it offers precisely zero guidance on how to bring such website into compliance. But there is a thing called the Web Content Accessibility Guide (WCAG) published by the World Wide Web Consortium (W3C) that explains what you need to know. From what I'm reading, the courts are paying a lot of attention to WCAG adherence. So if your website (mostly?) adheres to the accessibility recommendations, if you can demonstrate good faith effort and success in complying with especially with the major tenets of the WCAG then you should probably be okay.

 

Plaintiff's attorneys on these cases want an easy payday, a case that aligns neatly with their template for attack, not one that may require a lot of work or challenge. So to the extent your web site follows the WCAG recommendations, even if it's not perfect, then you should be that much safer from a scammy accessibility lawsuit. And you'll be doing a good public service.

Wheelchairs and handrails on the Internet?

So, what exactly is an accessible website? Folks that are blind or have other vision problems often use screen readers to read aloud the content of a website. But these screen readers need help to function properly. i.e. They can't simply read every word on the screen as that would be an incoherent word salad. Screen readers rely on embedded codes that guide them to what needs to be read, in what order, etc. Screen readers cannot read text that is image-based. So, images and other graphical elements that are designed to impart intelligence (not just decorative) need descriptive "alt tags" that can be read to the user.

Maybe your visitor can see just fine, but due to motor issues, they're unable to use a keyboard and/or mouse. Or they use a touch screen device or other assistive touch technology. Perhaps your visitor is colorblind (there are several types each with their own challenges) so the use of certain colors to impart navigational or other intelligence will fail for them.

If you enjoy 100% fully functional senses and motor control, you likely cannot appreciate all the ways a non-compliant website can frustrate and stymie your site visitors that are so compromised.

Access for All

Just as I believe universal internet access is a basic human right, so to do I believe all websites should be as widely accessible as reasonably possible. There's just no reason why the majority of websites should not accommodate visitors with special needs -- folks who already face challenges that most of us cannot even begin to understand.

Once made aware that "website ADA" is a thing, that alone should be enough to want to do what's reasonably possible to ensure painless website access to as wide an audience as practical. It's just the right thing to do as a fellow human. And given all the lawsuits being filed, well, now there's a pretty strong financial incentive as well.

Even though I don't specialize in website WCAG compliancy audits, I have relationships with people that do. Please contact me for more info on how to help protect yourself and your business against such lawsuits.