What You Need to Know About Fighting ADA Website Lawsuits as an eCommerce Business Owner
Disclaimer: This blog post is not legal advice. Please contact an experienced ADA attorney for any legal advice you may need. We can refer you to some reputed lawyers if you would like.
In recent years, there has been a significant increase in Americans with Disabilities Act (ADA) lawsuits claiming that company websites, as well as mobile phone apps, are not fully accessible. These claims make the following two assertions: Private company websites qualify as places of public accommodation under the ADA, and websites with access barriers (such as a lack of compatible screen-reading software) deprive individuals of their right to equal access.
In 2016, 262 of these cases were filed nationwide. By 2021, that number had risen to over 4500 just in Federal Courts, not including State Courts, and demand letters prior to filing of lawsuits.
For an insightful article on how these law firms operate, click here to read this article in Business Insider titled: A single law firm is behind hundreds of website accessibility cases. One client says they ‘beefed up’ her blindness in more than a dozen lawsuits.
The ADA is a federal civil rights law that prohibits discrimination against individuals with disabilities. The ADA requires businesses to make reasonable accommodations for individuals with disabilities.
If you are an eCommerce business owner, then you need to be aware of the Americans with Disabilities Act (ADA) and the potential for ADA lawsuits. This article will provide an overview of what you need to do to comply with the ADA, and how to defend an ADA lawsuit.
EcomBack has the services you need to help you get compliant to defend or settle a digital website accessibility lawsuit. Keep reading to learn more.
What do Online Businesses and Websites need to do to comply with the ADA?
Businesses need to take steps to ensure that their websites and other online content are accessible to individuals with disabilities. This generally means making sure that all content is accessible through screen readers and that all forms are accessible through keyboard navigation. In addition, businesses should provide alternative means of communication for customers who cannot access website content or use a computer. For example, businesses could provide a phone number or mailing address for customers who need to communicate with customer service, however that may not be sufficient as some legal cases have been fought on similar grounds.
How to Fight an ADA Lawsuit
If you are sued for violating the ADA, you can argue that your business complied with the ADA and took reasonable steps to accommodate the plaintiff’s disability. It’s important to document what work you have done to make your website accessible. You can leverage a solution to show that you are doing the work.
When you’re impacted with an ADA lawsuit, you need to consider the following:
- Which experienced ADA lawyer to hire?
- What issues on your website caused the lawsuit?
- What will it cost to settle and fix your website?
- What is the cost of fighting and losing?
- How do the options weigh against each other?
- Will business insurance cover this claim? Most do not.
It would help if you also considered the expenses:
- Costs of defense
- Potential remediation costs
- Business disruption
- Risk of adverse outcome
- Cost of settlements
One of the most significant issues is the lack of absurd clarity in defining what constitutes compliance by courts and the Department of Justice. The plaintiff has already done some legwork in these matters most of the time. It’s typical for plaintiffs to have a set of boilerplate complaints briefly mentioning accessibility errors on your website or app.
Does Having Insurance Help with ADA Lawsuits?
If you are an eCommerce business owner with insurance, see if the policy covers ADA website claims. Some will exclude all ADA claims, while others will evaluate claims differently depending on whether the claim involves damage. Keep in mind that regardless of what insurance policy you carry, remediation is frequently not covered.
The IRS offers tax breaks for remediating websites to be compliant with ADA.
Up to $5000 ADA Tax Credit
The government gives small to mid-size businesses up to $5000 back via the ADA tax credit and deduction in a taxable year. Take advantage of this tax benefit if you want access for everyone. https://www.ada.gov/taxcred.htm
Which is Better: Settling vs. Fighting
There is a point where the expense of a rightful defense may equal or even exceed that of settlement. This all depends on whether you have valid arguments.
Settlements are private, whereas judgments are public and may affect a business’s reputation. If your website is accessible and strong regarding WCAG ADA compliance, you’ll have a better chance of winning. It’s the finest defense if you comply with the law.
If you are aware that the plaintiff cannot offer a condition of the website that constituted a barrier due to their disability, you may have a defense. In some jurisdictions, plaintiffs are obligated to provide an actual intention to be a customer of the business.
What to Consider When Settling
- What amount do you have to pay to make the plaintiff and their attorney go away?
- What is your tolerance for the uncertainties of litigation?
- Will settling encourage copycat lawsuits? According to some lawyers who specialize in this area of law, certain law firms sit and watch for settlements, and then pounce for their share by making claims of inaccessibility.
- Does your settlement agreement have a court-mandated compliance clause?
Settlement or Litigation
If you reach a settlement, it’s important that you ensure full compliance and undergo an audit for verification of that compliance. Should you decide to fight, thorough preparation is essential. You’ll need expert witnesses, detailed documentation of all compliance efforts, and a rock-solid legal team. However, since courts have been split on whether websites need to be compliant with the ADA, judges are often creating the law by precedent.
There’s always the risk that if you fight an ADA lawsuit, the court can decide that the website or mobile app just isn’t “good enough.”
It’s also important to note that settling will not make the need to comply with accessibility requirements vanish, and settlement-related compliance fines may be extremely high because Plaintiff’s law firms want their experts to be hired to monitor your compliance. Sounds like how the (legal) mafia operates, doesn’t it?
Digital Accessibility is the Most-Effective Defense Against Lawsuits
Whether you decide to settle or fight, you always want to make sure your website and apps are accessible and compliant. Accessibility is the best defense against lawsuits, and more importantly, it ensures that your customers keep coming back.
EcomBack can help you with this via our top-of-the-line ADA WCAG Compliance Services. Our team of remediation experts, auditors, ADA consultants, visually impaired testers, and expert developers can follow the correct steps to ensure your website is accessible.
Our ADA Website Consultants and team will share some tips and processes that will improve your website’s accessibility and decrease the chances of litigation.
Full Accessibility 3 Factor Audit
- Identify and explain WCAG issues failures
- Identify accessibility barriers and eliminate auto-scan false results
- In-depth audit report
- Remediation and repair checklist
Accessibility Repair
- Full remediation process of code checking, manual fixes, and 3rd party apps errors.
- Check and fix color contrast errors.
- Set up Alt-Text auto-scheduler app installed for product, collection, home page images.
- Review of video content for captions or set up disclaimers.
- Manual testing by experts and team members with visual impairments
Launch Revised Website Theme/Code
We’ll start with a backup theme to repair your website’s code. We will then evaluate and launch it once the cleaned-up website code/theme is approved.
Website Training
- Help your employees understand what ADA and accessibility is
- ARIA & Style training and explanation
- How to audit your website monthly or quarterly and show you the tools you need
- Long term monitoring and fixes can be provided for more extensive sites
Accessibility Overlays
We do not recommend using overlays that promise to fix your website with one line of code. While some overlays offer good features, there are those in the disabled rights community that reject overlays for reasons they have put in this fact sheet. Click here to read it.
Accessibility Statement
We will provide you with a lawyer-drafted Accessibility Statement template to place prominently on your website. Placing an accessibility statement shows your visitors that you’re committed to being inclusive.
Monitor and Maintain
Website accessibility is not a won and done. Every time you update your website, you must ensure it is accessible.
How to Respond to a Demand Letter on Website ADA Compliance
While some demand letters will have more validity to them than others, no matter what, it’s crucial that you address a demand letter on website accessibility.
Legal Counsel
If you receive an ADA demand letter, an experienced defense attorney with comprehensive knowledge of ADA cases can guide you through your options. If you need an ADA attorney, we can offer some recommendations. Please contact us.
Put succinctly, it is better to be proactive than reactive. Legal notification comes in the form of a demand letter, and it serves as notice that you have been sued. However, it also gives you time to prepare your response and stake out your position for any legal action. The lawyer will look to slow down and extend the procedure by requesting more information and detailed proof of the claim. This will allow your team additional time to improve its negotiating position and prepare for future defending.
Plan Your Defense
Take notice of where you are now, what you’ve done so far, and the plans in place. This will assist you in developing and keeping an internal strategy. Your “Accessibility Policy” will be defined by this.
Remember, always be transparent and communicative.
Prevention
The best way to defend against an ADA lawsuit is to have a website that is accessible from the start. The business model for so-called plaintiff’s law firms is to go after low-hanging fruit because they are in it for the sue-settle cash-grab of your hard-earned money.
ADA compliance will require a change in mindset and some proactive policies. You will need to educate your team, create an internal policy, design, and test with accessibility in mind, and be prepared to monitor and maintain compliance on an ongoing basis.
Using EcomBack’s ADA compliance services are the first steps in fighting a digital accessibility lawsuit.
