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Companies across America are getting sued for violating Web Content Accessibility Guidelines (WCAG 2.0) and the Americans with Disabilities Act. These regulations protect people with disabilities and provide access to barrier-free web content. Unfortunately, these rules often put companies at the mercy of vague laws and hefty fines for non-compliant websites. And the last thing any company wants to face is a web accessibility lawsuit. This blog breaks down how these suits look, who’s getting sued, best practices and tips to help you through the process and timelines, and how your company can avoid them.
What if You Face a Web accessibility Lawsuit?
Remember, making a website that follows WCAG 2.0 and ADA Section 508 regulations helps your user base and can protect you against web accessibility lawsuits.
Below we break down what to expect if you face a website accessibility lawsuit:
1. A Notice Arrives
You’re notified that a lawsuit has been filed against you and get details on your compliance violations. You may also learn what damages the plaintiff is seeking. Below, we go into further detail on the types of notifications and stages of web accessibility lawsuits to expect, along with the respective timeframes to address them.
2. Time to Hire a Lawyer
You’ll need a defense lawyer to prepare your legal strategy properly, which can be costly. Still, it’s necessary to find a lawyer who’s an expert in internet accessibility law and equal rights. Then, get ready to build a case and refute any charges brought against you in an ADA website lawsuit. The goal is to create a solid defense showing your website is accessible and compliant.
3. Go to Trial
You likely need to go to trial once your lawyer prepares your defense, which can come with hefty fines. The penalty for not meeting accessibility standards can range from $50k to $100k. Keep in mind that there are various steps you can take to verify whether the plaintiff is filing bogus claims, along with investigating whether they even attempted a purchase or your site. The best practices are outlined in detail below.
4. Make Your Case
While you may be correct, and your site is, in fact, accessible, you’ll need an expert witness to attest to that fact. If you are a reputable web developer, you may count as the expert, but if you’re not, get ready to pay. You’ll need to hire an impartial technical expert to be a witness in your case who can provide a detailed technical review proving that your site is accessible and that the claims of the website accessibility lawsuit may be bogus.
5. Who Wins in the End?
If your site is compliant and you technically win the case, it’s not over. The plaintiff can appeal to higher courts dragging the case out for years and costing you more. Even if you win, recovering the money you had to pay for the lawyer and court fees can be difficult. In some cases, the judge may award you some damages to pay for legal fees, but it may be in small sums over many years.
If your site is proved to be noncompliant, things get even more expensive, as you’ll need to pay a fine at the judge’s discretion. At the end of this process, your bank account will look a bit like this no matter what the ruling is: Lawyers’ Fees + Work Missed + Technical Expert Witness + Court Fees and Fines = High Expenses.
Not to mention the negative press and reputational damage that can come with losing website accessibility lawsuits. While you might think these are rare cases, accessibility lawsuits are becoming commonplace for businesses. Many businesses settle out of court rather than go to trial, increasing the number of cases.
What Should I Do When Facing A Website Accessibility Lawsuit? Tips & Best Practices
Other than the suggested steps and guidelines for what to expect when dealing with web accessibility lawsuits, there are definite best practices to follow. We’ve compiled some tips to help get you through an ADA compliance lawsuit against your website with proactive measures.
Verify Your Insurance Policy Coverage
Some insurance policies will provide coverage for the cost of legal defense in the case of a web accessibility lawsuit, and could potentially assign an attorney directly to your case. Since insurance claims like these can fall under the Employment Practice Liability Insurance (EPLI) as a case of its own, or they may be considered an endorsement to a Directors and Officers Policy (D&O) or Business Owner Policy (BOP), you may be able to save significantly on legal fees. Coverage can also be found in cyber, media or website liability policies. Talk to your insurer and verify details as soon as possible.
Critical Documentation of Information for Web Accessibility Lawsuits
A plaintiff’s attorney needs to generate an online scanner report that is the foundation for a web accessibility lawsuit demand letter or complaint. Make sure your lawyer requests the online scanner report for your record. Accessibility enablement companies with a LSP (Legal Services Program) can help by offering services that validate the allegations in the report, as often they can be out of date or bogus. Your chances of negotiating a settlement and creating a stronger defense case increase when presenting invalid allegations.
Check Customer Records for Their Status
Not all ADA lawsuits against websites are founded in actual attempts of customers to purchase anything online. Some individuals or organizations are simply looking to exploit lucrative opportunities in a legal claim, or they could be a competitor looking to tarnish your brand reputation. Make sure you investigate customer records and whether the Plaintiff actually tried to make a purchase on your website. Check everything from call records to emails inquiring about transactions or support for purchases. If the plaintiff isn’t an actual customer, your defense could be positioned even stronger.
Identify Your Connection to The Case Jurisdiction
There are occasions that an ADA website lawsuit is filed in an out-of-state court. If it’s unclear as to why your claim reached courts in that region, you can identify whether your business is really connected to the state by calculating the percentage of transactional revenue of your company from that state. Once you have figures in place, you can gain an understanding of relevance and take necessary action if required.
Address Allegations and Lawsuits Within Given Timeframes
Addressing litigation threats for a web accessibility lawsuit within the limited timeframes allotted is critical, and failure to do so could amount to serious repercussions. Let’s look at the timeframes for the various scenarios you could be facing to help you move through the process in a collected and cost-effective manner.
1. Receiving a Demand Letter Threatening Litigation
Plaintiffs are not prescribed a specific amount of time to wait before filing a lawsuit after sending a demand letter. If a plaintiff’s counsel gets signs that you are considering settlement, they can hold off on filing a lawsuit, but they can still do so at any time. As a professional courtesy and gesture of goodwill to opposing counsel and even the defendant, plaintiff’s counsel will often agree to extend your response time before they file a website accessibility lawsuit.
2. Receiving Notice That Your Business Has Been Sued In Court
Your timeframe to respond to an email or package that claims a website accessibility lawsuit against your business only initiates once you are served with summons and complaint of the plaintiff. Service in the majority of jurisdictions is considered proper when the actual business owner or right representative is served, and in some cases service can be done via mail, or even digitally on rare occasions if court ordered. This scenario presents time to develop a defense or settlement strategy, but always be aware that the plaintiff will serve you papers soon.
3. Receiving Documentation That You Have Been Sued in Court
If a complaint is filed against you in federal or state court, expect to receive a notice or summons outline allegations with a timeframe for your response, called the “response deadline.” Response deadlines vary based on the court and case, but in most cases you have 21 or 30 days to respond to the complaint. Make sure to act quickly and efficiently to prepare your response in a timely manner. Failure to respond within the allotted time frame could result in a default judgment against you, making you automatically lose the case, likewise if you miss extension deadlines.
Which Companies Are at Risk for A Web Accessibility Lawsuit?
All-sized companies risk penalties for an ADA compliance lawsuit, and even the most prominent firms may need to be better versed in the respective guidelines. While it seems like a no-brainer that companies with large web-development teams would protect themselves from an ADA discrimination lawsuit, they’re still getting slammed with hefty fines.
For instance, Greyhound recently paid $300,000 for an ADA compliance lawsuit and the standard $75,000 civic penalty. Moreover, the company only had 15 days to pay the $75,000 in civil penalties—could your company pay that kind of cash within 15 days?
The penalty Greyhound paid pales compared to what other companies have shelled out. A ruling against Target saw the company paying class damages of $6 million and compensating The National Federation of the Blind for their attorney’s fees and costs exceeding $3.5 million. The costly impacts of violating the web accessibility guidelines simply can’t be overstated.
The National Museum of Crime and Punishment also violated ADA guidelines. Their settlement extended beyond fixing their website, including hiring new staff members and implementing new policies. The consequences of violating the ADA can have lasting effects. Instead of paying fines and legal fees, there could be actions that impact your staff and the way you do your work.
What are the Regulations?
The ADA doesn’t specify written guidelines for web accessibility. Nonetheless, the Department of Justice (DOJ) has decided to enforce Title III of the ADA regarding company websites that publicly accommodate people. Fortunately, the DOJ released further guidance on how Title III applies to the web in March of 2022.
Because web accessibility laws are highly open to interpretation, it’s imperative to stay abreast of these latest guidelines. Despite your best efforts, you might think you’re doing everything correctly but may not comply if you don’t have the most current information.
What Can You Do to Avoid an ADA Compliance Lawsuit?
The best defense is to make sure your website complies with as many accessibility standards as possible from the start. While you may be unable to tell that your site is 100% compliant due to vague regulations with multiple interpretations, it’s essential to do your best to try. Otherwise, you will find yourself in the company of other website owners caught in costly web accessibility lawsuits. You must be careful and continually check the changing regulations, and hopefully, avoid expensive fines and embarrassing public lawsuits.
UserWay Specializes in Web Accessibility
UserWay’s primary mission is to provide equal access to the digital world for people of all abilities. And that starts by helping companies like yours increase web accessibility for people with disabilities—the world’s most significant minority. But you also get invaluable legal compliance with the ADA, WCAG, and all other regulatory standards. Remember, ADA lawsuits against websites will only increase. But with UserWay’s comprehensive solution, you can protect your company legally while making the web more inclusive.
UserWay also provides a comprehensive LSP (Legal Support Program), ensuring that a member of the Legal Support Team will be in touch within 5-7 days to help evaluate your case. The program includes assigning your case to an Advisory with applicable legal, accessibility and technical intelligence, and strategies. Plus, a 30-minute consultation with the Legal Support Team, including an experienced litigation attorney well-versed in web accessibility law.
What are the Consequences of a Non-ADA Compliant Site?
Simply put, you’re vulnerable to legal action if your site excludes people with disabilities. The DOJ enforces ADA guidelines and is authorized to scrutinize complaints and apply legal penalties to non-compliant companies. Website accessibility lawsuit numbers are becoming more common and the numbers annually are growing, so it’s a smart business decision to ensure your website is accessible.
How Much Have ADA Lawsuits Against Websites Increased?
According to Seyfarth Shaw’s findings, over 11,000 plaintiffs filed ADA Title III lawsuits in 2021—a 4% uptick compared to 2020 and a 320% increase compared to 2013. In 2022 there were 3,225 website accessibility lawsuits in federal court in 2022 – a 12% jump from 2021.
What’s The Best First Step to Avoid Legal Penalties for A Website Accessibility Lawsuit?
Start with an accessibility audit, which will put you on course to ensure your website and all related variables are obstacle-free for people with disabilities. This audit will lay the foundation for meeting compliance and safeguarding your company from costly lawsuits.