Over the past several years, there has been a tremendous increase in the prevalence of digital tools, online businesses, and mobile applications. This has led to a spike of litigation in both federal court, under Title III of the Americans with Disabilities Act (ADA), and similar state statutes, such as New York Human Rights Law and California’s Unruh Act, as users with a variety of disabilities allege challenges in accessing various components of a company’s online business.
The Octillo Website Accessibility Team, made up of lawyers who are also web developers and web design business owners, continues to monitor federal and state filings under the ADA, which have more than quadrupled in the past seven years. While no industry is immune, we have noticed a trend of lawsuits targeting the retail and restaurant sector, as more individuals with disabilities are seeking out websites over brick-and-mortar stores, creating higher risk for online businesses with accessibility issues.
Part of the surge in litigation over the past handful of years is caused from the lack of clarity from the Department of Justice, the federal agency responsible for enforcement of the ADA. In 2017, the DOJ declined to issue clarifying regulations, contributing to continued uncertainty on clarity on what digital accessibility entailed. Hence a waive of litigation ensued and shows no signs of letting up. Thus, absent any legislation or guidance from the DOJ, now is the time for organizations for organizations to take a holistic approach to digital accessibility, taking proactive steps to make their digital platforms accessible for users with a variety of disabilities. But what does that look like in practice and why should your organization make accessibility a priority in 2021?
Current Legal Landscape
As any good business understands, it is crucial to always keep the consumer top-of-mind, and your online presence is certainly no exception. Creating a digital platform that can be used by the greatest number of consumers possible should always be the goal, and that number needs to include the 1 in 5 Americans who have a disability.
However, deciphering what exactly it means for an online business to be considered accessible under Title III of the ADA has been a constant challenge for companies, web designers, and attorneys working in the accessibility space. Despite the DOJ’s lack of clarity on this issue, the Web Content Accessibility Guidelines (WCAG) 2.1, private industry standards promulgated by the World Wide Web Consortium (W3C), are widely accepted by the industry and courts for measuring accessibility. The WCAG standards are broken down into three “levels” of acceptability: Level A, Level AA, and Level AAA. Level A and Level AA are where most common barriers for disabled users exist and are thus the accepted standards to achieve website accessibility.
It is also important to note how Title III of the ADA intersects with privacy regulations. For example, while there is currently no federal data privacy law, the California Consumer Protection Act (CCPA) requires that website Privacy Policies be “reasonably” accessible to individuals using screen-reading software and other tools to access a website. This is an important piece of this comprehensive data privacy legislation and while it doesn’t address the accessibility of the rest of a business’s website, making sure your digital tools, such as web forms for data subject rights, cookie consent banners, and other similar tools on your website, are accessible to the greatest number of users makes wise sense in the spirit of this regulation. Additionally, with a new administration in the White House, anticipate that we may see federal legislation that clarifies clarify both data privacy and accessibility standards on a national level, which would make working towards compliance and avoiding predatory lawsuits easier for companies with an online presence.
What We’ve Learned About ADA Accessibility Claims
Practically speaking, it remains unclear what having an “accessible” website means. For this reason, a very high number of ADA cases filed against online businesses are quickly settled outside of court to avoid the expense of litigating in such uncertain terrain.
Website and mobile app accessibility claims against businesses in a variety of sectors have become a familiar occurrence. Most of these cases have similar allegations; a disabled individual argues that they encountered multiple access barriers that denied him/her full and equal access to the goods and services offered online by a company. In most of these cases, the plaintiff has attempted to leverage screen-reading software to access the website or mobile application and claims the platform is incompatible with the assistive technology they are using.
Other commonly made claims include improperly labeled links and pages, inconsistent placement of on-page elements, like the shopping cart, and lack of image alt-text, title elements, and other features that help blind users navigate a website. Thus, the plaintiff argues, the business has violated Title III of the ADA and related state statute, entitling the plaintiff, among other things, to injunctive relief and attorneys’ fees.
Practical Steps for Businesses
The sheer volume of settlement agreements and cases Octillo has worked on has exposed some common themes and provided valuable insights into how online businesses can proactively address website accessibility and minimize legal risk. We recommend the following four-prong approach:
- Consult with legal tech counsel, like Octillo, to evaluate litigation risk and regulatory compliance;
- Have your website or mobile app audited with the protection of attorney-client privilege or with a trusted third party vendor against the WCAG Level A and Level AA standards to determine what remediation is necessary to address any existing barriers and test your website using assistive technology, such as a screen reader, to be sure all barriers have been remedied.
- Publish a legally-reviewed Accessibility Statement on the forward-facing website and mobile application, and work to develop internal policies, procedures, and a training program that implement regular audit and assessment of accessibility; and
- Operationalize accessibility within your organization, prioritizing a top-down, multi-department approach throughout your organization to building accessibility.
Keeping in mind the end goals of improving usability for individuals with disabilities and avoiding frivolous lawsuits, businesses can arm themselves with a proper plan to address their online platforms’ accessibility. From our experience, a holistic approach to digital accessibility that understands how to bring together various stakeholders and decisions makers from throughout the organization as accessibility champions is the best way to operationalize accessibility.
With former web developers and technologists on staff, Octillo is well-suited to help businesses from all sectors and industries navigate the uncertain legal landscape surrounding website accessibility. Through collaborating with in-house technologists, outside vendors, members of the disability community, and internal assistive technologies, Octillo attorneys work under privilege to conduct internal and remedial audits of client websites and mobile applications, evaluate platform compatibility, and oversee implementation of recommended remedial or accessibility-enhancement measures. Our team can help you develop and implement a sustainable accessibility program that contemplates compliance with the WCAG guidelines and other current and future website accessibility standards and best practices.
*Attorney Advertising. Prior results do not guarantee similar outcomes.