This is a repost of an old article on the Tenon blog. Since that’s being sunsetted, I’m reposting it below.
A Quick History
There have been over 230 lawsuit settlements that relate directly to web accessibility. More specifically, that’s the number that have been publicized. The real number is likely double or even triple that, as we’ll explain below. The lawsuits generally fall into 7 distinct markets:
- Finance & Insurance
- Real Estate (a relatively new addition to this list)
Government entities are required by law to make their websites accessible. This is mandated by ADA Title II for State & Local governments and by Rehabilitation Act Section 508 for Federal Agencies in the Executive Branch. The Department of Justice’s Civil Rights Division periodically reviews ADA compliance at State & Local Government as part of Project Civic Access and, where necessary, pursues litigation to ensure compliance. At the Federal level, most of the litigation that has taken place has come from varied sources, such as citizens or agency employees. The plaintiffs in these cases are supported by disability rights organizations such as NFB.
The legal action around Education has come from varied sources though the most active source has been the Department of Education’s Office of Civil Rights (OCR). The Department of Justice has also been active here. OCR has been very active recently due to the increased use of web-based technologies in higher education. K-12 litigation around ICT accessibility rarely reaches the public eye because such concerns usually arise during the IEP process. In 2015, one lawsuit in particular got attention when a mother of 3 blind students settled her lawsuit against Seattle Public Schools.
Finance & Insurance, Travel, and Healthcare
Litigation around web accessibility for Finance & Insurance companies has the longest history, going back to 2000 with lawsuits against Bank of America, Intuit, H&R Block, and more. In the travel sector, Southwest, JetBlue, and Expedia have all settled lawsuits dating back to 2004 and face recent updates to the Air Carrier Access Act that mandate Web Accessibility among other changes. Healthcare & Health Insurance companies which offer services through Medicare, Medicaid, the Children’s Health Insurance Program, and the Health Insurance Marketplace are required to provide accessible systems by CMS.
By far the most interesting development in accessibility-related litigation has been the recent explosion in lawsuits against e-retailers, many of which haven’t yet been added to the list we mention above. In the last 6-8 months there have been over 50 lawsuits filed against e-retailers and hundreds of demand letters alleging ADA violations. While many in the Accessibility field are well-acquainted with the NFB v. Target settlement in 2008, E-Retailers haven’t gotten much attention in accessibility lawsuits until recently. Prior to 2015 many assumed that it was only large companies that got sued for web accessibility. This recent increase in activity proves that belief to be very, very wrong. In March 2016, a plaintiff in California won a lawsuit against Colorado Bag ‘n Baggage – a small retailer with only 28 physical stores.
The award in this lawsuit is only $4,000 plus reasonable attorney’s fees and injunctive relief – that is, the defendant must fix their site. The end result, in the case of Colorado Bag n’ Baggage is that their website was taken offline completely for several months. It is unclear, at the moment, whether the site will be put back online, but it goes without saying that while the site was down Colorado Bag n’ Baggage lost a ton of sales revenue and marketing opportunities.
Mitigating Legal Risk Requires Active Prevention
When the NFB filed suit against Target, one of the areas of contention had to do with the e-commerce platform. At the time, Target.com was using the Amazon platform. Many others who were also on the Amazon platform at the time stated in private conversations that they were “waiting to see how things shake out”. In 2008, “waiting it out” turned out to be a good play. While many people involved in accessibility like to point to point out the size of the settlement – $6,000,000 plus legal fees, etc. – the fact is that to Target it was a drop in the bucket. It is less than 1/10th of 1% of Target’s annual revenue.
One thing has become clear with the recent legal action is that neither size nor time offer any protection and nor does platform. It doesn’t matter if you’re on Magento, Shopify, Demandware, or Oracle. It doesn’t matter if you’re a multinational corporation, or a small web-only niche supplier. It doesn’t matter if you’re a big department store or sell tools or sporting goods. Plaintiffs’ perspectives are clear on this: “I want to be able to buy stuff online.” When you look at the list of markets we discussed at the beginning of this post there’s an important theme: Whether it is managing your money, getting places, or making purchases, these are all things that are central to participating in the modern economy. As a consequence, we should anticipate that the rate of web-accessibility related lawsuits will increase dramatically and that this recent burst in activity will not go away but will rather intensify.
Address Accessibility Immediately. Anything beyond “now” is too late
While the concept of “being in compliance” has a strong attractiveness to lawyers and executives, the most important thing to remember when it comes to risk mitigation is the level of accessibility of your systems. “Compliance” is a mere byproduct of having systems that are accessible. In other words, you can’t become compliant without making your systems accessible and in fully all scenarios, making your system more accessible is truly the only outcome:
- Proactively making your site accessible avoids the complaint before it happens
- If you receive a complaint, there are only three paths:
- Ignoring the initial letter of complaint. At most, this buys you time. You should use this time to aggressively address accessibility. The more inaccessible your systems are, the more likely that the complainant will just go ahead and file their suit once they’re tired of waiting for you response.
- Settle with the plaintiff. As of this writing, all settlements we’ve seen involve three things: settlement damages, plaintiff’s legal fees, and injunctive relief. In most cases the injunctive relief stipulates that you have to make your system(s) accessible.
- Take your chances in court. As is the case with any legal threat, you may choose to go ahead and take your chances in court, rather than settle. The objective truth is that Title III of the ADA does not explicitly state that the Web is a place of public accommodation. Some judges have commented accordingly, but that is extremely rare!
The Department of Justice has been consistent in statements made within amicus brief after amicus brief that they consider the Web to be a place of Public Accommodation. The overwhelming number of settlements along with the recent judgment against Colorado Bag n’ Baggage make for a compelling argument that taking your chances in court is probably a poor decision. If you lose, the end result is the same anyway: damages, legal fees, and injunctive relief.
Overall, the final result is the same in each of the above scenarios: the system must be made accessible. In other words, “fixing your stuff” is the universal outcome of all options. The only decision to be made is whether you want to do it on your budget & timeline or on the plaintiff’s timeline with the plaintiff dictating the budget.
Eating the Elephant
It should be relatively obvious that leaving such things in the hands of a plaintiff is less than ideal. Being proactive means being able to ramp up your accessibility efforts carefully, deliberately, and with the right resources. Effectively addressing accessibility is a multi-faceted thing. Tenon’s API is an important part of what should be a holistic view of quality user experience. Placing the right tool in your design, development, content, and QA workflows is a core component to your program. But there are others that must be considered as well, like tooling, training, project management, manual testing, and policy.
- All staff including executives must be trained to understand the challenges people with disabilities face when interacting with technology. In the same way that organizations require sensitivity training regarding sexual harassment, they should also require training on disability awareness, including technology use by people with disabilities.
- Procurement, Program/ Project Management staff must be trained to understand the high level user-based requirements for accessibility so that they can plan for them and allocate the resources necessary to meet those requirements.
Human Resources must understand the skills necessary to make ICT systems accessible so that they can plan for the recruitment and training of such staff.
- Accessibility expertise must be aggressively sought and grown. The talent pool for accessibility is in very short supply and growing that knowledge internally is highly beneficial. You will reap huge benefits by fostering the growth of existing staff who are motivated to learn accessibility.
- True support for accessibility must come from the top so that budget and effort can be allocated effectively and mandated across the organization.
No automated tool can determine “compliance” and no tool can automatically fix it, either
We’d love to say that Tenon can automatically determine whether or not your system meets all of the WCAG conformance criteria. It can’t. No tool can. It is impossible for an automated tool to be 100% certain that your system meets any of the 61 WCAG Success Criteria. In fact, some of WCAG’s Success Criteria can’t be reliably tested via automated means at all. Furthermore, if no automated tool can fully test a system it stands to reason that no other automated means can fix the system’s problems, either. You should treat anyone making either of these claims with serious suspicion.
An automated tool is a powerful addition to a robust testing methodology that should begin with automation and include manual, use case, and even usability testing. Tenon proves its value most powerfully when it is integrated across multiple stages of a project from design to development to maintenance and content. The more that an organization applies agile methodologies to their work, the more value Tenon delivers.
Effectively mitigating risk: the earlier the better
Given the current litigation atmosphere, the best way to deal with accessibility is to start now. Whether you’re currently under threat or not, it only makes sense to start making meaningful progress on accessibility now. Doing so is the least expensive, least stressful, and most-sustainable approach.