Are You Afraid of Web Accessibility Lawsuits?
If you’ve been ignoring web accessibility and ADA compliance it’s time to wake up because Web Accessibility Lawsuits are coming for your site.
Image Source: AccessiBe
If you think this post title is just clickbait — you’re wrong, and you should be afraid!
Frankly, we should all be concerned about delivering a good web experience to people with disabilities, but the fact is — most of us haven’t been. Even as part of a web development company, we were late on board to addressing ADA compliance.
Being ignorant, however, isn’t going to keep web accessibility lawsuits from putting a strangle hold on your business.
From global brands to small local businesses, everyone with a website is starting to feel the looming threat of web accessibility lawsuits.
According to analysis by Seyfarth Shaw, more than 11,000 ADA Title III lawsuits were filed in federal courts in 2019, a 400% increase compared to just six years earlier.
Winn-Dixie was the first such lawsuit to be taken to trial. In that case, according to Forbes.com, a federal judge determined the grocery store failed to make its website accessible to people with significant visual impairment. As a result, the company allocated $250,000 to update their site. This was a landmark win for this particular plaintiff, who has filed nearly 70 other known lawsuits claiming business websites failed to comply with American with Disabilities Act (ADA) standards.
This case has set the standard for web accessibility lawsuits.
Let me be clear, if you go to trial for an ADA compliance suit — you are almost certainly going to lose.
The precedence has been set and this precedence has led to a tsunami of web accessibility lawsuits. It’s not just big brands who are being targeted. As you can see from the landmark case mentioned above, that plaintiff has filed 70 other know lawsuits! The number of plaintiffs filing web accessibility lawsuits has increased exponentially over the past year, including small businesses and stand-alone eCommerce stores. Colorado Bag & Baggage, a small business, was forced to pay a plaintiff $4,000 in damages plus up to $100,000 in the plaintiff’s legal fees.
Mounting legal precedent led Forbes.com to write, “times are changing and online businesses have a greater responsibility than ever to prioritize their website accessibility. When companies essentially deny equal access because their website is incompatible with a screen reader – or has other accessibility issues, the companies also become vulnerable to lawsuits.” Source ~ Accessibe
Why Haven’t I Heard About ADA Compliance? Is it really that important?
Every industry has to comply with web accessibility regulations, yet not all fields have been affected equally. I’ve personally heard many website owners say things like; “that’s something only big companies have to worry about.”
I can assure you that it’s not.
To date the industries most impacted by web accessibility lawsuits are:
- eCommerce businesses
- Restaurants and food industry
- Automotive Industry
- Finance Industry
- Healthcare Industry
While many of the cases that make the news are Bigger Companies, it’s mostly small to medium-sized businesses (SMBs) that have been hit with thousands of lawsuits and demand letters relating to website accessibility over the past 2 years. This increase in cases has triggered an alarm prompting the National Retail Federation to issue a warning to businesses urging them to start taking web accessibility seriously.
Over the past 6 months, we’ve fielded dozens of calls from SB eCommerce store owners seeking help because they are already caught up in web accessibility lawsuits.
Smaller businesses are more vulnerable to being targeted by unfair lawsuits because they don’t have the budgets to make their websites ADA and WCAG compliant. ~ Small Biz Trends
Costs can run into the tens of thousands for SMBs to make their sites compliant, so businesses often back burner website accessibility. Large corporations like Target—who in 2008 paid a $6 million settlement on a lawsuit brought by the National Federation of the Blind—can handle the extra effort and expense of making their websites compliant. But, can your small business afford a settlement like that? Can your business even afford to pay the legal expense to remedy the complaint and pay legal fees on top of that?
The Transition to a Web Accessible Future isn’t Painless
For many website owners all of this litigation is coming as an attack of opportunity on businesses everywhere. The truth is, all businesses should have been helping to shape the path to a web accessible to people with disabilities. The U.S. Census Bureau estimates nearly 1-in-5 Americans has a disability. That’s more than 60 million people.
That’s 60 million people that most of us didn’t really consider when shaping the online space. It’s also a significant amount of potential customers that online businesses didn’t consider.
Today, by the power of the Americans with Disabilities Act (ADA), every business website has to be accessible to people with disabilities. The Law prohibits discrimination based on disability by places of “public accommodation”, meaning websites or brick-and-mortar facilities. People with disabilities, specifically those who are blind or visually impaired, have been filing lawsuits against businesses over website accessibility issues, and many of them were winning. From 2017 to 2018, the number of federal website accessibility lawsuits nearly tripled, from 814 to 2258, according to the law firm Seyfarth Shaw, which states that this figure is on track to be slightly higher this year.
Unfortunately, now it is too late to be on the forefront of a transition rooted in good will. Right now, awareness of web accessibility lawsuits are growing and many businesses are left grasping for a viable solution to remedy issues that are costing thousands of dollars.
Experts say these lawsuits are typically settled for between a couple of thousand dollars and $20,000, but could cost much more if defendants chose to fight in court. ~Source: FLA
Small businesses every day are feeling the pain of web accessibility in the form of lawsuits, and no business is immune.
Oh, Shit! Is my Website ADA Compliant!?
If this is all coming as a surprise or sounding a bit urgent and you’re left wondering if your site is compliant or if you’re vulnerable, take a breath — it may not be too late for you. If you haven’t been hit with a web accessibility lawsuit, look at this as a great opportunity to get ahead of this thing before it does happen to you. This isn’t a matter of if, it’s just a matter of when.
When it comes to the accessibility of websites, the most commonly used and referenced standards are the Web Content Accessibility Guidelines (WCAG). They were originally developed in 2008 by W3C, an international organization dedicated to web development standards. The US government uses these guidelines for its own websites (like ADA.gov). Title II of the ADA requires state and local government services to be accessible.
WCAG introduces 4 principles for web content and design. They state that for a website to be “accessible”, it must be:
- Perceivable — This principle includes guidelines such as providing text alternatives for non-text content. For example, you should have “alt text” for product photos to accommodate for blind or vision-impaired visitors.
- Operable — This principle says you should ensure your site can be effectively used by all people. For instance, a user should be able to reasonably navigate your site using just their keyboard (without a mouse).
- Understandable — This principle states (among other things) that your site should be rendered in such a way that things like the language used can be programmatically determined (by browser accessibility plugins and other tools). It also suggests that a site should behave predictably. For example, merely changing focus on a part of a page doesn’t cause unexpected changes to the content.
- Robust — According to this principle, content should be implemented in a way that it can be interpreted reliably by assistive technologies. Basic adherence to this guideline includes having valid code markup so the content can be parsed by a machine.
Is Your Web Design Agency Responsible for Compliance?
This is a great question! I can tell you, as an owner of a web design agency, that’s additional liability that no agency wants to take on. I can also tell you that our attorneys advised us to steer clear of this and recommend a 3rd party provider who specializes solely in this type of compliance.
This is a very tricky issue for businesses and web developers alike. While many web agencies can and do take on web accessibility issues, most will recommend a 3rd party solution that specializes in this type of compliance.
Because traditional techniques for building a website to meet accessibility requirements can be extremely costly, requiring thousands of dollars and weeks of coding. Retrofitting an existing site can be just as expensive. Plus, manual updates are required every time new content is added to the site.
The current alternatives out there are:
1. Manual web accessibility coding work – mostly expensive ($5000 -$15,000 per project), slow and doesn’t provide an ongoing solution.
2. Web accessibility plugin- achieves only 20% compliance making you vulnerable to lawsuits since it does not abide by the legislative guidelines.
Those options, as you can imagine, leave 99% of businesses without a feasible solution, making them: Easy targets for lawsuits and prevents them from helping people with disabilities.
Is Your eCommerce Host like BigCommerce or Shopify Responsible?
Another great question. Here is what BigCommerce has to say about that:
Does using BigCommerce mean my site is ADA compliant?
Merely using an ecommerce platform (like BigCommerce) for your website is not sufficient to ensure ADA compliance. While we offer the tools to help support compliance, we cannot force a merchant to implement an ADA-compliant site. Poorly formatted content, implementing customizations, and changing its design are among the actions that can potentially make an otherwise compliant site non-compliant.
BigCommerce is constantly working to improve the accessibility of its templates and themes, but ultimately, ensuring that a site is ADA compliant is the responsibility of the merchant.
How Do I Make My Website ADA Compliant?
Web accessibility is a considerably new concept. Most people are familiar with the Americans with Disabilities Act (ADA), but some don’t know that they are exposed to the risk of lawsuits. If you’ve made it this far, you now know the risks involved and that (you the website owner) is responsible.
As an owner in a website design company, I feel that it is my responsibility to help get the urgent word out about issues such as this. If you’ve ever been involved in a lawsuit — you know how costly and emotionally draining it can be. I strongly urge all small business owners to take web accessibility lawsuits seriously. More importantly take action solve this issue to avoid receiving a demand letter and getting into legal litigation that could be very costly in terms of time and money.
So where does that leave you?
● Do nothing… However, you could be at risk of a lawsuit and we DON’T recommend this!
● Take your website offline… But now you don’t have a business
● Hire an ADA compliance company like SiteImprove ($5k+/month) or AudioEye ($10k+/year)
● Use a “Free Plugin” service that only provides 20-50% coverage on compliance
Over the past 6-8 months, my team has been actively explored all of these options seeking solutions that work for businesses both small and large. There are plenty of online tools to test your site for compliance and there are plenty of services and plugins you can use to help get your site in compliance.
I’m not going to waste your time referencing a bunch of different tools that only work with about 20% efficiency. I will also be fully transparent and let you know that my company has partnered with Accessibe in our effort to assist businesses with compliance.
So, yes, if you check out Accessibe and like what they’re offering we could get a commission if you use our link.
Who is Accessibe and Why Would I Use Them?
Accessibe is an AI automated system that can achieve full ADA compliance within 48 hours and provides 24/7 automatic maintenance.
This is by far the most simple, automated and affordable solution that we have found. After reviewing their system and using it on our own website, we have decided to offer the same solution to all of our clients. Take 3 minutes from your busy day and watch this video to see how easy and effective it is.
Their yearly service price is $490 per domain. Learn more about AccessiBe
Although there will be a cost to this it’s going to be a lot less than having to deal with the legal mess of a lawsuit or even one of the compliance companies that I noted above.
If you want to take a deep dive into this technology for your own due diligence, download the tech sheet here.
I believe most of us want to do the right thing and that making sure that all websites are ADA compliant certainly is the right thing to do. That being said, we’re all motivated by fear and web accessibility lawsuits are very real and something all businesses should fear. Compliance is inevitable, be proactive and protect your business while making the internet a better place.