This blog is a summary of UsableNet's November 19th Webinar, Ecommerce ADA Strategies for 2021, Watch the recording in full here.
With an increased reliance on business’s websites in the modern world, the ADA has expanded to cover a business’s site, too, and with e-commerce sales projected to grow up to 35% this holiday season, you want to be ready… especially if you are a retailer, 76% of all ADA lawsuits filed in the first six months of 2020 were filed against retailers.
In this post, we’re going to look at everything that e-commerce businesses need to know about ADA lawsuits moving into 2021, including how to best protect themselves.
Why ADA Compliance for E-Commerce?
The ADA’s goal is to eliminate all accessibility barriers in places of “public accommodation.”
According to Title III of the ADA, people with disabilities must have full access to places of “public accommodations.” This law covers brick-and-mortar establishments, such as restaurants, movie theaters, gyms, retail shopping, and more. Websites and apps are part of this.
2020 ADA Lawsuit Trends Impacting Retailers Most
In addition being sued more than any other industry, our own data shows the following trends are likely to impact retailers:
- Almost 25% of lawsuits are repeats to the same business
- 20% of lawsuits in 2020 address accessibility of apps
- Websites using “accessibility” widgets and overlays are being sued
- WCAG 2.1 is the new standard cited in ADA lawsuits in 2020
WhY Retailers Receive the Most ADA lawsuits
There are a number of reasons why retailers receive the most lawsuits:
- Websites and apps are easy to visit, and determine if accessibility is functional or not
- Existing DOJ settlements clearly confirm that retailer sites must be accessible
- Many ecommerce sites use complex functionality so it can be difficult to maintain to WCAG 2.1 standards
- Many retailers have multiple websites and/or apps
- There’s already a long history of ADA lawsuits against retailers for accessibility in the physical world
What to Expect When You Receive a Claim
ADA claims are typically brought by a blind individual who could not complete general tasks, which may be specific or vague.
These claims will typically come with a demand for remedy (aka to fix the site), along with a list of legal fees and damages if it’s filed under the Unruh act. There are no damages associated with the ADA.
After you receive a claim, you’ll want to do the following immediately:
- Notify your insurance carrier immediately; EPL and possibly D&O can help protect you
- Retain counsel to maintain privilege
- Have a vendor run a scan to see if the complaint is accurate or if there’s potential for settlement
Best Legal Defenses
If your company lacks an accessibility policy or statement that’s published online, you may be more likely to be hit with an ADA lawsuit. Here's how to craft an accessibility statement right now if you don't have one already.
Your best legal defenses will include the following:
- Work with counsel to develop defenses to ADA litigation to determine whether to fight or not
- You can look for a moot claim, or seek remediation instead of a lawsuit (refer to Diaz v. Kroger)
- If the suit isn’t accurate, can’t prove actual “injury,” or lacks specificity, you can try to have the case thrown out (refer to Mendez v. Apple Inc.)
Final Thoughts: How to Reduce Your ADA Lawsuit Risk
ADA lawsuits and claim letters are plaguing businesses in the E-Commerce industry, so if you haven't already received a claim, your best defense if to get proactive.
A few steps to take right now as you prepare for 2021:
- Publish an accessibility policy on your site
- Have an experienced vendor audit your site, including contracting blind users to test your site thoroughly
- Assess your website against the WCAG 2.1
Consider accessibility early in the design phase, if you can
Most importantly, you want to remediate your websites and apps to ADA/WCAG 2.1 compliance and even through code changes, new releases, and other business shifts, plan to maintain accessibility on all your digital assets.
To learn more about inclusive design and other web and app accessibility topics, check out our Roadmap to Digital Inclusion.