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Avoid ADA Website Compliance Lawsuits

The cost of your website not being ADA compliant can be tens of thousands of dollars, perhaps even the loss of your business. The frequency of such lawsuits is on the rise, but you can avoid them by getting compliant now, before you get that dreaded demand letter.

COVID-19 caused quite a bit of disruption in 2020, including the rate of ADA lawsuits, which dropped slightly from 2019. Yet, although the amount of lawsuits for the year dropped about 1% to just under 11,000, after April 2020 the monthly rate increased from the 2019 average. This statistic did not bode well for what would happen in 2021, and indeed, the total lawsuits for last year were more than 11,400. And in case you’re thinking this isn’t a big deal, realize that the cost of such a lawsuit for a small business can be anywhere from $3,000 to $25,000 — or more. Whereas, the overall cost of making your website compliant is substantially less.

There are more than 61 million people in the U.S. living with some form of disability, and thanks to COVID, they also had to adapt to the sudden change in the way everyone goes about their daily lives. As you know, there has been an increased dependence on the web for shopping, meals, working remotely, attending school or church services, and so much more. This has brought an increased focus on website and app functionality, leading to more websites being exposed for their inadequacy in being accessible to disabled persons.  

As of now, not much has changed in the rate of websites becoming ADA compliant. According to the latest analysis of 1 million homepages, 97.4% still had WCAG 2.0 (accessibility guidelines) violations — and that’s just one page! This leaves these site owners open to potential litigation if they do not work quickly to cure accessibility issues.

While the majority of these lawsuits are against businesses in the retail, hospitality and food industries (with the highest rate of lawsuits occurring in California, New York and Florida), this doesn’t mean your business is without risk. At best, it means you just have some time to prevent a compliance demand letter from showing up in your mail. If your business is in one of the highly targeted industries, or one of the more litigious locations, your timeline is more urgent, so taking action now may prevent an expensive legal process. 

It’s important to realize that the increasing amount of ADA lawsuits is not necessarily because disabled persons are discovering issues and acting on their perceived discrimination, often they’re manipulated into filing these lawsuits by predatory law firms who smell a big profit. In fact, there are just 10 law firms responsible for more than 70% of these suits. These “law firms” have employees completely dedicated to searching for businesses with non-compliant websites that they can sue. In some cases, they even make them up!

How do you go about preventing such a lawsuit from happening? Here are our top pieces of advice for bringing, and keeping, your site in compliance with ADA regulations, a worthwhile investment to avoid the hassle and cost of a potential ADA lawsuit.  

  1. Start with the right web developer. This is the most critical step, as the rest means nothing if you don’t have the right team. The agency you hire should be well seasoned in building ADA compliant websites because awareness of the more than seventy WCAG 2 guidelines (as of this writing) is critical not only in creating the site, but testing and maintaining it. ADA compliant websites are a specialized service; not all web agencies can build them right, but many can build them wrong, leaving you open to legal action despite your well-intentioned efforts. Keep in mind that no matter what happens, you as the website owner are the responsible party, not the web agency.
  2. Test your Website. The way those predatory law firms find ADA accessibility violations is through the use of scanning software that can discover some of them, just enough to determine whether you’re a good candidate for a demand letter. This same software will be used by your web provider to find and verify such violations, along with other methods to weed out all issues. Unlike those firms, your agency knows what to look for and how to correct them. 
  3. Compile a report. Once the scan is complete, your developer should be able to issue a report summarizing the findings, point out the most critical issues, and develop a plan to address them. The good news is that the accessibility scan will also point out general (not related to compliance) issues with your website that should be fixed as well, resulting in an overall improved experience for all visitors.
  4. Begin remediation. Depending on the amount of remediation required, this process can become time consuming and expensive. A more palatable option may be to create an alternative version that will be easier to build – and keep – 100% compliant. Another option may be the use of an ADA overlay, which is far less expensive, but also provides accessibility for a greater variety of disabilities. One drawback of an overlay is that you would still need a certain amount of manual remediation, since they (currently) are not 100% compliant.
  5. Test. Then test again. Once the website remediation is complete, it needs to be retested to ensure compliance. First, test with the same software used for the initial scan. Then, it should be tested by an actual disabled person, as this is the absolute best way to be certain your website passes a real life test.
  6. Draft an Accessibility StatementThis statement is incredibly important; it’s either a public information page, or section of a page, that outlines your policies and intent to be as accessible as possible. An Accessibility Statement should be written in a more personal and empathetic way than other statements or policies on the website. If done correctly, it will assure all site visitors that you’re making a genuine effort to provide full and equitable access to your site. It may even prevent an ADA lawsuit if you were to fall out of compliance for some reason. 
  7. Deploy your now-compliant website. The remediated website will replace the inaccessible one. If you opted to build an alternate ADA compliant site, it will reside in the same place as your standard version, with a very clear link to it for disabled persons to access. Once the site is live, you should run another automated test as well.
  8. Maintain the site. Unfortunately, an ADA compliant website is not a “set it and forget it” type of product. It needs to be periodically checked to make sure it stays in compliance — especially after any changes (add images, blog post, etc.) are done to the site. Any issues should be fixed immediately. Check with your web agency to see if they offer a monthly (at worst, quarterly) maintenance plan.

You may be thinking that building and maintaining an accessible website sounds expensive, but when you consider the potential cost of an ADA lawsuit, it’s a worthwhile investment. Such an event could cost you thousands of dollars, possibly tens of thousands, or even your business. 

Compare that potential business-ending cost with the price of remediation to become compliant, which can fall into the $3,000 to $8,000 range (ADA overlays are much less). You don’t have to be an accountant to see that this is a much more palatable option.

One more thing to be wary of: ADA laws allow your business to be sued countless times for the same violations until they’re corrected. 

With that much at stake, going through the compliance process is an absolute bargain and must-have for a smart website owner.

Find out more:

The ADA law

WCAG Guidelines

ADA lawsuits on the rise

Is your business at risk of an ADA lawsuit?

An attorney’s take on what to do to prevent an ADA lawsuit