This post summarizes UsableNet's August 2020 Webinar, "Best Practices and Legal Strategies for Defense of Website Accessibility Lawsuits," co-hosted by Elizabeth Rodriguez, an experienced ADA trial attorney and Partner in the Miami office of FordHarrison LLP.
From 2000-2015, the DOJ joined a number of private suits to establish that websites and mobile apps were subject to the ADA as “places of public accommodation.” Since then, there have been thousands of federal ADA lawsuits, which have been increasing in number annually.
ADA lawsuits can be expensive for businesses, so in this post we’re going to discuss what to expect when choosing between defending and settling, and what your best legal strategies for defense are.
Trends of Private Lawsuits
Before we look at how to defend against an ADA suit, it’s important to review current trends in private ADA website and app cases.
Here’s what you need to know:
- Almost 25% of ADA lawsuits hit on repeated complaints
- Retail businesses and restaurants are the most frequent targets
- Lawsuits commonly allege that commercial sites can’t be accessed by visually impaired individuals
- There have been an increased volume of demand letters
- The WCAG 2.1 has become the default standard in claims
- More companies are using “accessibility” widgets and overlays, but are being sued because these tools aren’t working
Should you Settle your ADA WEbsite CAse?
It’s important to understand the difference between defending against an ADA case or settling one.
Either way, do not ignore the ADA complaint. The longer it goes on, the more you’ll pay in attorney fees if you are found to have violated the ADA.
Regardless of whether you think you want to settle or defend against the claims, you do want to hire legal, knowledgeable counsel right away. They can help you make this decision, especially since many accessibility lawsuits are now organized as class action suits.
If your legal team believes that it’s beneficial to try to defend against the case, you can take it to court instead of settling automatically.
The Best Solution & Defense For ADA Lawsuits
When you’re looking to defend yourself against a legal accessibility lawsuit, there are a few things to keep in mind.
For starters, if you legitimately don’t sell or deliver products in the jurisdiction that you’ve been sued, consider moving to dismiss it.
Overall, however, the best defense is to take the following steps:
- Address claims as soon as possible. You’ll typically get either a demand letter or a complaint, which should include the ADA or state law violations that you’ve allegedly made.
- Create an accessibility policy regarding accessibility and addressing previous blind spots, and publish it online.
- Update your site as soon as possible so that it adheres to the WCAG 2.1 standard. You want your code and user interface to maintain this standard.
- Have people who use assistive technology like screen readers test your site.
- Work with a consultant to confirm remediation, and continue to test on an ongoing basis.
It’s almost always better to opt for a fully integrated approach to remediation, which many lawsuits request. You want to update all original website code and site features so that adheres to WCAG 2.1 standards, ensuring accessibility for everyone. Document the changes that you make.
Avoid overlays and widgets; they don’t fix any of the original code, and often fails both automated and manual accessibility tests that are used by plaintiffs and lawyers to conduct lawsuits.
Overall, the best defense you have against ADA and accessibility lawsuits is to avoid them altogether. Even if you’ve never been hit with a complaint before, take time now to be proactive in ensuring that your site is fully accessible from the code up. This will protect your business and offer equal access to all of your potential site and app visitors.
Interested in learning more about how to mitigate your risk and potential damages from ADA lawsuits? Watch our August webinar on-demand here to learn more.