What to do when you get sued… (revisited)
Rather than re-write my post What happens when you get sued for your inaccessible website, I wanted to revisit the topic entirely. A few years ago, I wrote a series of blog posts about the “Accessibility Business Case” Ultimately, I determined that reduction of legal risk was the most powerful business case argument. Recent events are proving me right.
None of this is legal advice. I’m not a lawyer. This is advice based on over a decade of accessibility consulting experience.
Over the last few months, a few dozen companies have been sued for violating the ADA by the same law firm, representing the same plaintiffs. “45 Lawsuits. Hundreds of Demand Letters.”, says an article describing the activity. Regardless of your opinion on whether this type of activity is right or wrong, the fact is that it is happening. The rate of legal action in the United States has increased significantly in the last few years, with some (including myself) who feel that if legal action is the only way to make the web more accessible, so be it.
You’re getting sued/ threatened. Now what?
I’ve worked for both plaintiffs and defendants in many legal cases and have seen some interesting patterns along the way. If you find yourself on the wrong end of a complaint letter, there are a number of things you can do to avoid a long, costly, and potentially embarrassing fight.
Lawyer up, of course
Chances are you if you’re one of those with the most risk, you already have legal staff on hand. If not, it goes without saying that you’ll want to find one. If your lawyer doesn’t have any experience in this area, it may be worthwhile to find one that does.
Do not dig your heels in
If your lawyer says that you should tell the plaintiff to buzz off, find a new lawyer. This doesn’t mean you should roll over and give in to the plaintiff’s demands, but in most cases becoming non-cooperative is the quickest way to wind up in a courtroom. In this recent round of lawsuits, if you peruse the court records in PACER, you’ll find this pattern (simplified below):
- Plaintiff sends letter notifying defendant of alleged violations of ADA
- Defendant says, in polite lawyerese, “stuff it”
- Plaintiff files lawsuit
Everything is downhill from there. History proves this rather well with Target, Netflix, and more. Outright refusal to cooperate is very poor strategy.
Hire a qualified accessibility consultant
Every single settlement – and indeed most of the demand letters – that I’m aware of will call for the defendant to engage an accessibility consultant to assist the defendant in making their website accessible. This is pretty obvious. If your website is allegedly bad enough to warrant a legal complaint, then there are probably systemic issues in the organization. You may have problems in policy and procedure. You may have general quality problems. You may have training problems. You may have any number of problems that require the assistance of a qualified accessibility consultant. Find one immediately so they can help you along the way, and ensure that they’re involved in everything – as a team member, not an outsider.
Get serious about accessibility
There’s really no question about it: Whether or not you wind up averting a lawsuit, you will be fixing your website. If it goes to settlement, fixing the website will be one of the requirements of the settlement. This is where your accessibility consultant comes in. You need to make sure your consultant has experience with policies, procedures, project management, UX, and development. All of these things will come into play during this process and you need to make sure your accessibility consultant can handle that for you.
An effective approach to accessibility is going to require full support all the way up to the top of the org chart. The converse is also true in that I’ve never seen an organization be successful with accessibility in the long-term without executive support.
When it comes to development, everyone involved must be empowered to contribute to the improvement of the system. Everyone from Project managers to designers, developers, QA, and content creators have an impact on the system’s accessibility and each should be allowed (and expected) to contribute to accessibility efforts. The larger the organization, the less that siloing accessibility will work.
Push hard on your vendors
In the recent activity, all of the defendants are retailers. Most retail websites operate on a handful of major e-commerce platforms and also use third-parties for coupons, gift cards, and similar services. In some of the earlier lawsuit settlements, third-party content was considered exempted from the settlement terms. The reasoning is sound: you can’t be compelled to fix someone else’s stuff. Due to the way that many of these e-commerce products are intrinsically tied to the rest of the business, I suspect that plaintiffs are less likely to have any sympathy with this argument. Back when Target was sued one of their arguments was that their problems were caused by Amazon’s e-commerce platform. So, while some things like your gift card provider might be exempt, blaming your accessibility problems on your choice and use of an underlying platform is probably going to gain little traction. Ultimately that which is served from your domain will be seen as being under your control and therefore the liability lies in your hands. Regardless of how any of that plays out legally, your best approach is to push hard on your vendors to get them to fix their own accessibility issues.
In my opinion, you should consider yourself lucky if the legal complaint comes from Lainey Feingold and Linda Dardarian. Their approach, which they call structured negotiations fosters a more collaborative approach than the typical complaint process. Why this approach is so awesome is that it is aimed at eliminating the adversarial nature you’d expect from a legal complaint. But even if it isn’t Lainey and Linda you’re dealing with, that doesn’t mean you can’t collaborate on a mutually agreeable outcome. If you agree that discriminating against people with disabilities is fundamentally wrong, then collaborating seems a better option than fighting – for everyone involved.