Web accessibility lawsuits under the Americans with Disabilities Act (ADA) are proliferating, with thousands filed in just the last two years. However, many organizations seem to have adopted a “wait it out” strategy, expecting that they’ll deal with the question of accessibility if and when they receive an ADA demand letter.
Yet, businesses who wait to implement digital accessibility until after receiving an ADA demand letter may be both tempting fate and holding themselves back from achieving their full potential.
An ADA demand letter is a complaint that some aspect of a business — in this case, a website or app — is not accessible for people with disabilities.
These letters allege that an organization has thus violated Title III of the Americans with Disabilities Act. Title III of the ADA prohibits discrimination against people with disabilities in “places of public accommodation.” The ADA defines places of public accommodation as private businesses such as restaurants, stores, theaters, and hotels that are open to the general public.
Since the ADA became law nearly 30 years ago in 1990, it does not explicitly address the question of websites. However, a growing body of case law has upheld the interpretation that a website is a virtual extension of a business’s physical presence.
As such, websites must be accessible to people with visual, hearing, motor, and cognitive disabilities, which can be achieved by complying with web accessibility standards such as the Web Content Accessibility Guidelines (WCAG).
On the other hand, failing to make your website accessible entails the risk of a time-consuming and expensive accessibility lawsuit — especially after receiving an ADA demand letter. Websites belonging to Domino’s Pizza, the restaurant and entertainment chain Dave & Buster’s, and the singer Beyoncé have all recently been the target of high-profile ADA lawsuits.
While some businesses are still not aware of their accessibility obligations, others have intentionally opted to remain non-compliant with web accessibility standards.
There are many reasons this approach can be faulty. Here are four.
Banking on the hope that the recent spate of web accessibility lawsuits is just a flash in the pan or thinking that web accessibility is a fad is in contrast with all legal, business, and demographic indications.
Both the percentage of Americans with disabilities, and the percentage of Americans who use the Internet, continue to rise year after year.
According to the U.S. Centers for Disease Control and Prevention (CDC), there are now 61 million adults in the U.S., or 26% of the U.S. adult population, living with a disability. This figure is expected to increase in the future as the baby boomer generation continues to age. Meanwhile, an estimated 90% of Americans use the internet in 2019, up from 83% in 2015.
The convergence of these trends means that web accessibility will become more important, not less, in the years to come. In other words, trying to wait out this trend probably isn't going to work.
Despite some common misconceptions, people with disabilities aren't filing ADA lawsuits frivolously to make a lot of money. In fact, plaintiffs in these cases usually can't sue for personal damages. However, like almost everyone else, many people with disabilities are increasingly dependent on the internet in order to communicate with friends and family, make purchases, pay bills, and perform other activities essential to their daily lives — and being prevented from doing these things because of disability is a violation of their rights, and more and more are defending those rights in court.
Additionally, the number of such lawsuits has continued to increase. In 2018, there were at least 2,258 such lawsuits filed in federal court, almost tripling from the previous year.
Organizations that are waiting out accessibility because they disagree with the interpretation that the ADA applies to websites are at odds with this year's cases and trends.
In January 2019, for example, the U.S. Ninth Circuit Court of Appeals upheld that the ADA applies to websites and mobile apps in a web accessibility lawsuit against Domino’s Pizza. The U.S. Supreme Court refused to take up the case in October, ensuring that the Ninth Circuit’s opinion would stand.
In this particular case, the pizza chain chose to fight the lawsuit by challenging whether websites fall under the ADA. This strategy may have been misguided, as:
Plus:
Failing to make a website accessible involves the immediate risk of a costly and lengthy lawsuit. Whether a business faces a web accessibility lawsuit now or years down the line, it will be expensive — likely more expensive than implementing accessibility in the first place.
Yet there’s more at stake as well. Some organizations believe that web accessibility is a cost, and that it’s better to put this cost off as long as possible. However, what many of the most successful organizations have realized is that web accessibility is an investment, not a cost. It’s no surprise that the world’s most popular websites, from Google and YouTube to Facebook and Twitter, all have healthy web accessibility initiatives.
While some organizations are compelled by a moral aspect, others are focused chiefly on the bottom line and may be interested to learn that brands are losing billions of dollars by not being digitally accessible.
Every day that goes by without making websites accessible is a day of, frankly, wasted opportunities. In addition to avoiding the obvious financial and opportunity costs, web accessibility provides unexpected benefits to business such as:
If you receive an ADA demand letter, take it seriously but don't panic. Your first call should probably be to your attorney or legal counsel, and your next should be to a trusted and experienced digital accessibility partner.
Already received a demand letter? Get a free 30-minute consultation and let us share how we can help create an accessibility compliance strategy for your organization. Or, get started with a free website accessibility scan.