A recent blog published by law firm Ogletree Deakins notes similarities in a recent wave of web accessibility demand letters — and questions whether the letters are coming from actual human plaintiffs or bots.
According to the authors, bots may use artificial intelligence (A.I.) to quickly scan websites for potential violations of the Americans with Disabilities Act (ADA). That could allow plaintiffs to pursue hundreds of ADA claims at once, pressuring businesses to settle those claims before they lead to litigation.
But that approach may not have legal merit (as the authors note). Title III of the ADA, which applies to private businesses, requires that plaintiffs have disabilities; otherwise, the defendant’s alleged discrimination would not cause actual harm to the plaintiff.
The Bureau of Internet Accessibility is not a law firm, and this article is not intended as legal advice. However, we help our clients develop sustainable digital compliance strategies — and if you’re concerned about ADA demand letters coming from bots, we’d encourage you to take a deep breath. Here’s what business owners should know.
Automated tools can find some accessibility issues, but they’re not perfect
It’s conceivable that a plaintiff could use automated tools to test hundreds (or thousands) of websites for ADA violations. The problem: Automated accessibility audits have substantial limitations.
Even the best automated tools are prone to false positives — identifying accessibility barriers that don’t actually exist. Human oversight is absolutely essential.
For example, let’s say an automated tool tags ARIA “hidden" warnings, which occur when a developer uses WAI-ARIA (Web Accessibility Initiative - Accessible Rich Internet Applications) markup to hide certain elements from screen readers and other assistive technologies (AT).
An ARIA “hidden" warning might indicate that a site has an accessibility issue, but that’s not always the case: There are legitimate reasons to hide content from AT users.
Likewise, automated tests could identify missing alternative text (also called alt text) for images. But some images don’t need alt text — humans need to determine whether alt text is necessary, and A.I. isn’t currently capable of making those decisions.
Automated tests are quite useful as part of a thorough accessibility audit. However, their limitations make them a poor tool for filing massive waves of lawsuits — and could potentially expose law firms to penalties for filing fraudulent claims.
Related: Are Fraudulent ADA Website Lawsuits Common?
Courts still haven’t determined whether “testers" can file claims
There’s another key question to consider: Can a person with a disability file a lawsuit, even if they had no intention to use a business’s products or services?
The U.S. Supreme Court is likely to weigh in on that question in the coming months. The case in question, Acheson Hotels, LLC v. Deborah Laufer, was filed by a self-appointed “ADA tester,” who freely admits that she’s filing lawsuits on behalf of the disabilities community.
Depending on the outcome of that case, plaintiffs may not be able to use bots to scan content for potential violations (at least, not at scale).
Related: U.S. Supreme Court Will Determine Whether ADA Testers Can Sue
If you receive a web accessibility demand letter, proceed with caution
Generally, businesses should assume that web accessibility demand letters are legitimate. The vast majority of websites have serious accessibility barriers, and if you haven’t tested your content against the Web Content Accessibility Guidelines (WCAG), there’s a good chance that you’re part of that majority.
However, you shouldn’t panic if you receive a demand letter. Many issues can be addressed quickly and easily, and receiving a letter doesn’t mean that you’ll face a lawsuit.
A few quick tips to keep in mind:
- Don’t respond to the demand without discussing the letter with your legal counsel.
- Remember, the ADA applies to virtually every organization. While the law doesn’t include technical accessibility standards, the Department of Justice (DOJ) has published guidance on ADA web accessibility, which recommends testing content against WCAG.
- Evaluate each alleged accessibility barrier. Work with your accessibility partner to determine whether the issues are legitimate and to form an appropriate remediation strategy.
- Consider performing your own automated accessibility audit. The Bureau of Internet Accessibility provides free, confidential automated tests, which audit content against the latest version of WCAG.
- Don’t assume that the demand letter includes every potential ADA violation. You’ll need a thorough audit to form a sustainable digital compliance strategy.
If you’ve received an ADA demand letter, we’re here to help. Send us a message to connect with a subject matter expert.
