The importance of digital accessibility cannot be over-emphasized. At the very least, reasonable accommodations must be provided to ensure people with disabilities can access websites, applications, and digital content such as videos and documents. Inclusion-inclined countries have long legislated non-discrimination laws, and further enact digital accessibility acts to make this possible. Some of these laws come with requirements and deadlines, such as the Accessibility for Ontarians with Disabilities Act- AODA. Others have made it possible for disabled individuals to file a lawsuit against businesses or organizations. The Americans with Disabilities Act (ADA) under Title III is a civil rights law that protects over 60 million living with a disability in America by prohibiting discrimination. The Act mandates organizations to take steps necessary to communicate effectively and provide equal access, no matter the disability, in “places of public accommodation,” which include e-commerce stores, theaters, and restaurants, etc. that are open to the general public.
Organizations face the reality of making their digital assets accessible or face exposure to ADA, among other state-related accessibility lawsuits. Web accessibility lawsuits continue to grow in 2020, with the new report suggesting there’s been a hike in the American state-filed suits and an increase in app-related legal claims. Retail businesses and the food industry continue to be top targets of the shares with non-compliance with the ADA opening these large and midsize companies to financial liabilities and damage to brand reputation.
The way to eliminate legal risk remains to make your websites and apps fully ADA compliant is by following the international technical benchmark for web content accessibility- the Web Content Accessibility Guidelines (WCAG) 2.1 Level AA. This way, your digital assets become accessible to the disabled, hence, compliant with non-discrimination laws such as the ADA. While innovative organizations will move to take advantage of the many benefits of providing disabled access, it appears many would rather wait to receive a demand letter before giving weight to digital accessibility.
Web accessibility lawsuits usually include a list of accessibility issues found on the service provider’s site and a declaration of a significant barrier that prevents disabled access or impedes interaction with the web content. Examples include key inaccessibility or lack of alt-text, which could prevent users with a visual impairment from accessing content or lack of captions on video or audio content on the site, which could render the content inaccessible with hearing or visual impairments. Generally, most lawsuits are filed against websites that are keyboard inaccessible and hence, non-compatible with screen reader technologies used by people with visual impairments. This is particularly common among retail or e-commerce websites.
An ADA demand letter is a complaint that some aspect of a service provider’s business – in this case, a website or app – is not accessible to individuals with disabilities, thereby breaching Title III of the Americans with Disabilities Act. Organizations that have received a demand letter for website or app inaccessibility must, however, find a way to ensure a response process that can limit liability and ensure sustainable compliance.
Steps to Take When You Receive a Demand Letter
Getting served for the non-accessibility of your website or app can be overwhelming. Your next thought should be how to limit liability and be compliant with regulations. So let’s break down the steps on how to proceed.
Get an Accessibility Partner
When you receive a demand letter, the first thing to do is to engage an accessibility partner or an external legal counsel if the organization doesn’t have an in-house counsel. This is not only to respond to the letter but for the complexity of subsequent work required. As a guide through the process, your accessibility partner should have an expert understanding of digital accessibility compliance laws and requirements.
Your legal counsel or experienced digital accessibility partner will:
Review your demand letter to assess its legitimacy and cited standards that apply to your organization by virtue of where you operate. Verification of claim is also done by assessing your website to identify barriers to accessibility. These validations will guide how your legal counsel will respond to claims. Both parties are likely to enter into a negotiation or agree to settle or decide via the courts. The court process usually takes some time, which explains why over 90% of such lawsuits are settled outside the courts.
If claims are valid, it is on your accessibility partner to immediately initiate a response effort if your organization does not have the money to settle quickly. The response will include publishing an accessibility statement on your website to communicate your organization’s commitment to addressing your website’s accessibility and steps to become compliant. Developing an accessibility roadmap to address issues identified in the demand letter and those discovered following verification (through an accessibility audit) is equally vital when drafting a response, including negotiation for a settlement. Most importantly, your accessibility partner will help draft your demand letter response and provide the necessary guidance to resolve the accessibility complaints.
Conduct a Comprehensive Audit
Here, your organization’s digital properties must be audited and made accessible to individuals with disabilities. Even after audit and remediation, your compliance requires verification, making it a multi-step process.
Compliance cannot be achieved without a comprehensive accessibility audit of your websites, apps, and web content against accessibility benchmarks such as WCAG standards and legal requirements such as the ADA. The audit consists of automated tests using accessibility testing tools and manual experts who use assistive devices to navigate the web and identify typical functional and usability issues as experienced by disabled people.
Upon completing the audit, it is recommended to establish an audit trail that documents your efforts to improve accessibility. This can be particularly useful in the post-project phase and for future projects. Remediation should be carried out according to the impact of users with disabilities or legal risks they present to your organization to minimize liability continually. When barriers are removed, the site should be tested with the disability community to verify their compliance.
It is customary for manual digital accessibility solution providers to begin and end an accessibility project with an audit. They will perform validation assessments to review what has been done and further fix underlying issues.
Maintaining digital accessibility compliance is inevitable since accessibility is not a one and done project. Digital properties are bound to evolve due to updates, or standards; hence, regular/periodic assessment is required to test accessibility compliance, identify and resolve issues as they arise. This is where it becomes essential to train your team of content creators, designers, quality assurance personnel, developers, and other relevant employees to ensure accessibility is part of your process. Maintaining ongoing compliance through accessibility integration remains the only way to set your organization up for long-term success.
The most reasonable and cost-effective way to accessibility compliance and eliminate legal risk is to integrate accessibility from the beginning of design and development. For companies with sites that are already live to the public, the immediate focus should be reducing risk by auditing the site and remediating top-level errors and pages such as navigations, forms, headers, footers, etc. You also want to publish an accessibility statement on the site before the long-term move. On achieving compliance, ongoing accessibility monitoring (includes periodic automated and user tests) is just as essential as being accessible in the first place.
However, legal complications can arise, and when they do, the organization either settles or go to court. A large organization may decide to settle out of court but will cover a plaintiff’s cost and an agreement to remediate. Going to court will also require the website to be made accessible to the disabled and more, as exemplified by the Juan Carlos Gil v. Winn-Dixie Stores’ case. Suppose it is inevitable for organizations to ensure all its digital assets are fully compliant with WCAG 2.0/2.1 technical standards and ADA by being accessible to disabled persons. Why not mitigate the risk of compliance issues before they happen?
Disclaimer: This post does not constitute as legal advice. Please consult a lawyer for legal counsel.