What to Do If You Receive an ADA Web Accessibility Demand Letter
Web accessibility lawsuits are on the rise. In fact, according to UsableNet, in 2023 there were over 4,600 federal and state lawsuits in the U.S. alone. Over the years, an assortment of companies and websites have made headlines for their lack of accessibility including Beyoncé, Netflix, and Target. And in 2022, six years after the original filing, one of the most important web accessibility lawsuits, Robles v. Dominos Pizza, LLC, reached a conclusion. However, more often than not, companies who are called out for not being accessible never actually go to court. Instead, they receive demand letters that will very quickly put web accessibility on the radar for website managers and digital teams.
Ideally, businesses and organizations should start building accessible websites before they receive a demand letter. But, web accessibility can be a slow process. Even if your team is actively working on accessibility, you could still receive a demand letter. While this information should not be construed as legal advice, here are the general steps which should be taken after receiving a web accessibility demand letter.
Understand that this isn’t about money — it's about access
The United States has a reputation for being quick to sue for damages and frivolous lawsuits have certainly been used many times by plaintiffs seeking financial gain. This is not the case with plaintiffs who bring about web accessibility cases.
Under the Americans with Disabilities Act (ADA), individuals who bring lawsuits are not allowed to receive monetary awards. Thus, the motivating factor for plaintiffs in ADA accessibility cases is simply that they want access. With digital technology being so embedded in our lives right now, accessing the web is a basic human right. But the web is not created for everyone and having a disability can severely limit a person’s online access, so the individuals that file these lawsuits are not doing it for the sake of it, they are doing it because they are experiencing significant digital barriers.
While plaintiffs cannot receive monetary awards for lawsuits, they are entitled to reimbursement for legal fees and expenses. The law was written as such so individuals wouldn’t be discouraged from filing suits because they couldn’t afford the legal fees.
Do not ignore the demand letter
The irony of ADA accessibility lawsuits is that the plaintiffs want to use websites, but are unable to use those websites because of accessibility issues. This is incredibly frustrating for people with disabilities. Ignored, they feel that the only way to get companies to take action is to file a lawsuit.
The cases of Bob Cohen and Joe Houston about disability lawsuits detail this frustration.
Cohen, who heads the group "Access for the Disabled," has been a plaintiff in more than 375 ADA accessibility lawsuits. Houston runs the accessibility nonprofit "Access 4 All" and has been a plaintiff in over 200 lawsuits.
Both Cohen and Houston say that letter-writing campaigns don’t work.
"We tried for five years nothing but letters and personal phone contacts with restaurants and hotels, and we got no place,” said Cohen. “We got extremely frustrated with the lack of cooperation."
"The properties ignore the law," Houston said. "They are aware of it, but they do nothing until a lawsuit is brought up."
So do not ignore a complaint or demand letter about website accessibility. It will only add to the frustration and likely result in a lawsuit being filed.
Likewise, make sure your customer support staff is trained to handle any complaints about web accessibility so customers with disabilities feel like their concerns are being acknowledged and don’t need to resort to demand letters and litigation.
Consult your attorney
If your lawyer tells you to ignore a demand letter, then you should find a new lawyer.
Web accessibility cases are not going away, and past web accessibility lawsuits show that the courts are taking them very seriously.
When consulting your attorney, you will want to discuss when and how to respond to the demand letter.
Further, make sure your attorney looks over any applicable contracts to see if anyone else is liable for the violation and what the terms are for notifying parties of the breach of contract. For example, your web development company or contracted designers may be fully or partly liable.
Answer the letter
Not only should you pay heed to the demand letter, but you need to answer it promptly so the parties know you are taking their complaint seriously. Responding to the letter shows good faith. If you do not reply to the letter, you will probably be sued within 90 days.
Get a website audit
The Department of Justice (DOJ) is yet to provide concrete guidelines on how to comply to the ADA for websites, but organizations are encouraged to refer to Web Content Accessibility Guidelines (WCAG), Level AA to audit and remediate for compliance.
Find a web accessibility provider that can conduct manual and automated audits of your website and content. There are now numerous services which can give you a “report card scan” of how your website is doing in terms of accessibility. While these scans can be very helpful, there are some aspects of web accessibility that require review by a real person. It is recommended that an expert and a user who uses assistive devices conduct a website accessibility audit. For more on this, the World Wide Web Consortium (W3C) has a great page on accessibility testing.
There are also many ‘quick-fix’ solutions out there that provide accessibility widgets and overlays that claim to secure ADA compliance, and companies claiming state-of-the-art solutions implementing AI and machine learning to automate accessibility. These services should be approached with caution. They will rarely ever make your site accessible as web accessibility as they act as more of a supplementary tool that should be used alongside more sophisticated and thorough solutions. Accessibility is not a one-off task; it will be an ongoing project and will always require constant reviews and manual checks. It’s best to find an auditing solution that can scan your site for issues, but also encourages manual reviews.
Remediate the website
Whether you decide to fight in court or not, the reality is that your website will eventually have to get in compliance.
However, do not immediately start changing your website. Consult your legal counsel before making any changes as changes could be perceived as destroying evidence.
Once you receive the green light from your lawyer, the only thing left to do is to remediate your site. Start by establishing a web accessibility policy and a long term accessibility strategy. Other efforts can include publishing an Accessibility statement on your website to express your commitment to removing barriers on your website and providing users a place where they can report any accessibility issues they might encounter.
Getting into compliance isn’t as gargantuan of a task as many media reports would have you think. However, it is going to take some time and coordinated effort from various departments of your web team.
Are you worried about a web accessibility lawsuit? Acquia Optimize makes a tool that helps you get your website in compliance with Section 508 or WCAG 2.0. Learn more about the Acquia Optimize web accessibility tool here.
Disclaimer:
The information in this article is made available by Acquia Optimize ApS and/or its subsidiaries and affiliates and is for informational purposes only so as to provide its customers with a general understanding of current legal developments. It should not be construed as providing specific legal advice, and you acknowledge that no attorney/client relationship exists between you or any third party and Acquia Optimize ApS and/or its subsidiaries and affiliates. This article should not be used as a substitute for competent legal advice from a licensed lawyer in your jurisdiction.
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