Beyond ADA Compliance:
Real-World Strategies to Mitigate Legal Risk
Related Resources
Bethany Sirven: Good morning. Thank you for joining the webinar today. Today's webinar is titled Beyond ADA Compliance: Real-World Strategies to Mitigate Legal Risk. We at UsableNet are happy to have our featured presenter today, Richard Hunt. This webinar will be hosted by Jason Taylor. A copy of the slides will be available after the webinar. You'll receive a link via email. We are also recording today's session, and that will be emailed out as well. Without further ado, here is Jason.
Jason Taylor: Thank you, Bethany. I am honored to be co-hosting with Richard Hunt. Essentially, Richard's going to take most of the content today and I'm going to quickly go over the agenda in a second. Just to give you context around UsableNet, what we bring from a knowledge perspective to this subject is that we've helped over around 250 US companies in the last couple of years in different situations, companies that want to be proactive in the space of accessibility, companies that are part of a DOJ voluntary settlement, companies that have received demand letters and need to have a response, and also companies that have received ADA lawsuits.
Jason Taylor: We also have a research department team that tracks every ADA lawsuit, identifies them as web related, and then reviews and tracks those lawsuits. Although, we've done some research papers around that data, we can only provide that sort of general knowledge of what happens in lawsuits, what they contain, and how a company can help mitigate that. Richard Hunt, on the other hand, has lots of experience across different types of vertical companies and essentially has helped companies negotiate and settle many ADA web related lawsuits. He has a national defense practice for ADA and FHA. Since Richard is going to take most of the content today, we will gain more practical information to that.
Jason Taylor: A quick review of the agenda. So, I'm going to do my little bit up front. I'm just going to give you guys an update on general accessibility claim trends in 2019 so far, some basic observations of what the 2018 and 2019 data shows, and then Richard's going to get into the meat of the presentation around why ADA website lawsuits are unlike ordinary business lawsuits. He's going to discuss what you could do right now to mitigate your current risk of such a lawsuit, and also provide strategies to mitigate repeat litigation, and we'll talk about the increase in repeat litigation and how that is shaping some of the legal space today.
Jason Taylor: So, I wanted to start with a quick poll of the listeners just to give us an idea of the types of people we have on the line. You'll get a poll that will pop up, and if you can just give us a quick indication of whether you're part of a company and a part of a team that's doing testing and remediating, whether you're in the accessibility space as a consultant or an expert, or whether you're part of an internal or external legal team that is reviewing this type of ADA action. So, gives you an idea that we've got a reasonably broad set of people on the call and we'll try to make sure that we tailor the content to get across what I think you guys are going to try and get from this particular session.
Jason Taylor: But as you see, accessibility has a reasonably large slice of legality associated with it today. So, it's important to cover these particular elements. So, I just wanted to give you some facts around 2018 and 2019 to boil it down. Scary fact number one, which I think everyone's pretty familiar with is the fast ramp-up of legal cases that have been filed under the ADA towards companies alleging that they have not made their sites accessible to people with disabilities. There's possibly two really driving factors. The 2017 withdrawal of the DOJ from setting out what the real standards and what you should do as a business opened up a void from legal firms, but also, I think, triggered frustration from the disability community feeling that a lot of companies weren't taking accessibility seriously.
Jason Taylor: Secondly, the reason why these still go up, I think in 2019 Q1, cases were up another 31% on top of 2018, is primarily because companies haven't taken accessibility as seriously as they should. So, there's a two-edged sword. Companies haven't done a great job of understanding what they should do for accessibility and exposed themselves to the potential of a lawsuit, and there is a very active community of people that are looking to use the legal system to either bring awareness for the disability community, but also potentially make some money.
Jason Taylor: Another reason why these lawsuits continue to go up is plaintiffs are winning these cases. You do read a lot about individual smaller number of cases that are better argued in court. The vast majority of them don't go that far. Probably 90 to 95% of them, based on our research, close within three months, which means they get settled outside of court, and Richard will explain why that is the case because they're different than normal business case lawsuits. But it also means that the plaintiffs are winning, they're getting their legal fees, they are finding plenty of opportunities to sue more companies that have yet to become ADA compliant.
Jason Taylor: That leads me to scary fact number two, which is a survey that was done. I think it took about two or three months. WebAIM, which a lot of you might know for their online tool that everyone is quite familiar with called WAVE, which is a great tool for testing a page at a time, got an understanding of where that particular page is on accessibility, they did a test of the top one million home pages. So, you can go, and we'll provide a link to this off of the notes from the speaker notes, and we wrote a blog about it. It essentially shows that 97% of the top one million homepages have issues that can be found.
Jason Taylor: So, obviously, if you're a plaintiff lawyer, you look at that and there's a lot of companies that you can potentially sue because they haven't even made their homepages free of what I would classify as a small number of accessibility issues, which WAVE covers. So, WAVE doesn't check every single thing about accessibility. But even so, 97% of companies haven't bothered to make sure that their homepages pass WAVE, which is one of the first things that a company can do to lower its mitigation risk is to make sure that its top pages pass automatics tests, which are readily available out there for other people to use.
Jason Taylor: So, the plaintiffs and the plaintiff's lawyers have lots of companies to go after. Interestingly, you can go to this survey and you can type in your URL. If it's in the top one million pages in the world, it will come up and tell you exactly how you did. The third scary fact is that statistically in 2018 and 2019, data is the same. 20% of the lawsuits are re-suits. What that means is, and very quickly, practically, it means that companies typically settle. They settle with one plaintiff on one website and they give themselves two years to do the work.
Jason Taylor: What that typically means maybe is that the lawyers report back that they've got two years, the IT teams don't do much because they think they've got two years, but they've just settled with one person. Another person can come along tomorrow. The same problems exist, they can sue. In some cases, the same plaintiff sues a different website. So, they settle on one website, but the company had multiple websites. So, for example, I think Prada Group has been sued seven times across its brands. That's because companies aren't moving quickly enough to get a plan in place, to communicate their plan, and Richard will cover that in a little more detail.
Jason Taylor: Finally, just to give you practically, what is typically seen in a settlement, whether it's a DOJ settlement, a private settlement, a demand letter settlement, these are basically the items that are typically agreed to in a settlement. Firstly, the company agrees to create a policy and put up an accessibility statement. They will typically indicate that they will remediate the site in a particular timeframe to a particular set of WCAG standards. Most of the time, that's 2.0 AA. They will agree to test the site with people in the disability community or blind users, because essentially, those are the people that are bringing most of the lawsuits.
Jason Taylor: They will typically be asked to engage a third-party accessibility company to document their compliance or their efforts, and they will commit to continue to test and monitor the site for accessibility. So, we'll go through a little bit more detail with Richard about the different types of lawsuits and how they work, but essentially, if you started to do this today, this would be the most practical set of activities that you could do to mitigate your risk of lawsuits and, more importantly, make your site accessible so people with disabilities using assistive technology could have successful activity with your sites. So, that said, I'm going to hand it over to Richard. He's going to talk a little bit more in detail around the ADA lawsuits and why they're unlike other ordinary business lawsuits.
Richard Hunt: Thanks very much, Jason. ADA website lawsuits are, I like to say, a horse of a different color. This is because a typical business lawsuit begins with a complaint or a demand letter, and the dynamic of the lawsuit is that the initial round of defensive maneuvers is intended like artillery before battle to soften up the plaintiff in anticipation of perhaps a better settlement that could be obtained otherwise. ADA lawsuits are different for reasons that we're going to talk about.
Richard Hunt: So, what is different about an ADA website lawsuit? First, remediation is absolutely necessary, but it cannot eliminate litigation risk, particularly if it is remediation that hasn't been completed. We'll talk about why that's true, but it is a fact that in the process of remediating your website, you have to take into account some of the legal limitations on proving that a website is accessible. The second point is that the settlement cost is not related to the merits of the lawsuit. Different people have different opinions about the legitimacy of website lawsuits or the motivations of the people who file them. No matter what you think about that, it is true that these lawsuits are filed with the goal of settlement.
Richard Hunt: The plaintiffs bar is there for pricing their settlements to make them easy to settle rather than pricing the settlement based on the absolute merits or nonmerits of the lawsuit. Finally, the settlement cost is not related to the injury of the plaintiff. In most cases, the plaintiff has suffered no injury, and in cases brought only under the ADA as opposed to state law, the plaintiff isn't entitled to money damages anyway. So, a typical business lawsuit, you have money damages that have to be taken into account, you have an extensive analysis of the merits of the lawsuit when you're thinking about how much you're going to pay to settle it, and of course, you may want to fix the underlying problem. But you would feel like if you fix it, you're fixed.
Richard Hunt: Let's talk first about why remediation is necessary, but cannot eliminate remediation, a litigation risk. I ask the question, "Riddle me this, Batman," from the old TV show of the '60s, and not so much more recent Batman standards. The reason remediation is necessary but can't guarantee an end of litigation is because nobody actually knows what it means to have an accessible website for legal purposes. If we can go to the next slide, we have an industry standard, WCAG 2.x. 2.0 is the one that is most commonly referred to in litigation. 2.1 is the current standard. But in any case, it is a voluntary industry standard. It is not a standard that has any legal teeth to it.
Richard Hunt: There's no general law in the United States or anywhere in the world that requires all the websites to meet this industry standard. It's just a private industry standard. We do have some law, Section 508 of the Rehabilitation Act, which covers government websites and government technology, has adopted WCAG 2.0 at Success Level AA as the standard. The Air Carrier Access Act has adopted WCAG 2.0 Success Level AA more or less for websites run by airlines. But for the vast majority of businesses, there are no ADA regulations and accessibility therefore remains undefined. To put it more specifically, there have been cases holding first that proving your website was WCAG 2.0 Success Level AA compliant was not sufficient to win the lawsuit.
Richard Hunt: On the other hand, cases telling plaintiffs that proving it was not WCAG 2.0 Success Level AA did not prove it was noncompliant. In other words, every website accessibility lawsuit, there will be no victory until there is, in most cases, at least, until there is a trial. So, let's go on to the next slide. Where this leaves people is, since victory is extremely uncertain for both the plaintiffs and defendants, it makes more sense to make a deal. Making a deal involves a few things. First, it involves remediating the website. Usually, the plaintiff's attorneys will agree that the website should be remediated to WCAG 2.0 Success Level AA.
Richard Hunt: It's likely that in the future, they will start demanding WCAG 2.1 because that's the more current standard. But in any case, the settlement agreement's going to call for remediation, it's probably going to call for ongoing monitoring, and last but not least, it's going to call for a cash payment to the plaintiff's law firm. What I said a minute ago that these cases would probably settle, what I meant was although the plaintiffs typically ask for a very large number, it could range as high as $250,000, more typical would be a starting demand in the range of 50 to $70,000. But plaintiffs are typically settling these cases for an amount that's in the range of 15 to $20,000.
Richard Hunt: Some plaintiffs settle for quite a bit less than that. We've recently seen the appearance of what I'll call bottom feeders. These are law firms that are sending demands with no real intention of litigating, and they will therefore take a very small amount of money. But most of the firms filing these lawsuits are sophisticated firms and they know what they want. What they want is between 15 and $20,000. That price is less than any effective defense of the lawsuit, particularly if the defense goes on past the initial motions phase. We know because of the uncertainty of the law that the lawsuit's very unlikely to be resolved early.
Richard Hunt: So, it only makes sense to make a deal. You cannot control the cost of remediation. For the most part, you're going to have to do it. You can only slightly control the cost of the settlement to the plaintiff because they know what they want and they've priced it at a point where they know you can't refuse it. What you can control is how much money and how much internal time you spend working on the lawsuit as opposed to remediation. So, it makes sense to reduce those as much as possible by making a deal early. My clients find this very aggravating. They're used to the idea that you can defend a lawsuit, you might have a chance of winning. You don't have to settle if you don't like the plaintiff or if you think badly of the plaintiff's motivations.
Richard Hunt: But website lawsuits aren't like that. The practical business solution is going to be to settle and to settle as early as possible. But there's good news. Let's go to the next slide. The old saying is when life gives you lemons, make lemonade. What the settlement is going to care for, or what your preventative measures is going to call for, is making your website more accessible to people with disabilities. These lawsuits typically involve, or most frequently involve individuals who are blind, but all other disabilities are included as well. Although it has been said and is frequently said that the disabled are an invisible part of the population, the fact is people with disabilities spend money, they buy things, they used products and services, and a website that they cannot use is a website that isn't going to make as much money as it could.
Richard Hunt: So, the practical business reason to remediate the website has really nothing to do with the litigation. The practical business reason is you want to sell to the members of the disabled community. So, it's not just right. It's about money. Now, let's talk about what you can do right now, whether or not you've been sued, and hopefully, you have not yet been sued. Well, before we get into the details of that, let's ask the next polling question, which is have you tested the accessibility of your website? All right. I see we've got a slight majority have tested it within the six months, the last six months. A substantial number have not tested their websites at all.
Richard Hunt: When we talk about what to do right now, I will say, and I think Jason will confirm this, the most important thing to do is to find out if your website is compliant. If you have only tested in the last six months, you probably need to test again because most modern websites are dynamic, they change frequently, and every change presents a risk to accessibility. Now, let's get into the practical aspects. What do you need when you're faced with the threat of website litigation, either immediately or you trying to avoid it in the future? Well, first, you need a nerd.
Richard Hunt: Although these cases are often presented as primarily cases about interesting issues of law, and I will tell you there are many, many interesting issues of law related to website litigation, some of which are slowly being resolved, but the first thing you need is not a lawyer. The first thing you need is somebody to fix your website. This could be a member of your IT team. My experience has been that it is more likely to be an outside consultant. The reason is simple. The current standard, WCAG 2.1, which is the best standard we have in terms of understanding website accessibility for private businesses, has four principles, 12 guidelines, 78 success criteria, and includes 501 suggested techniques for assuring compliance.
Richard Hunt: Those techniques are described in a thousand pages of text and they are nonexclusive, meaning there are many other possible techniques that might accomplish the same thing. Unless your IT team has already begun studying WCAG 2.1 and the techniques that are used to make a website accessible, it's likely that you'll be able to achieve accessibility faster with some kind of outside help. That may be outside help in understanding what's wrong with the website and also outside help in understanding how to fix what's wrong with the website. So, the first thing you need is you need a nerd.
Richard Hunt: The next thing you need is a plan. Why do you need a plan? Well, as in any other business enterprise, the best way to know you're going to achieve success is to know how you're going to get there. So, a plan is simply a good business practice. But there's a legal reason as well. If it becomes necessary to defend a website lawsuit, the courts take into account whether the defendant has a fixed plan to achieve accessibility, and in particular, a plan that has deadlines and a budget. So, it's a good idea if you want to get things done, but it's also helpful for the defensive website lawsuits.
Richard Hunt: Finally, I don't want to leave myself out of this. You do need a lawyer. The reason you need a lawyer is because although website accessibility is largely a technical problem, as I said, there are legal aspects to it. One of the things you want to do is both plan your route to accessibility so as to minimize litigation risk. That requires knowing how the plaintiffs are determining who they will sue, and I mentioned the plan. You want to make sure that the plan you come up with is a plan that is likely to, if you need it, accomplish what you want to accomplish in court. So, you need a nerd, you need a plan, you need a lawyer.
Richard Hunt: With that, let's get into some of the specifics of what you want to do to mitigate the risk of repeat litigation or the risk of even a first lawsuit. Let's see. First, fix it. As I said, get your nerd, your nerds, your outside consultant, or get your in house IT people up to speed on accessibility and begin fixing the website as quickly as possible. Jason mentioned that there are 20% of these lawsuits are repeat lawsuits. That's because, as he said, typical settlement agreements give the defendant up to two years to achieve accessibility, according to whatever standard is agreed upon. But you saw from the rate at which new lawsuits are being filed that taking two years to have an accessible website almost guarantees that you'll get sued again before your website is accessible.
Richard Hunt: So, while you may be able to get the plaintiff in one case to agree to a two year or 18 month period, you want to do is as quickly as possible. There is a legal aspect to this as well. When you're fixing your website, you should understand that the plaintiffs who are filing these lawsuits are typically not doing an in depth analysis of website accessibility. They are using one of a few software tools available. Those software tools look for the easiest to spot failures of WCAG compliance. When you're planning your accessibility, you want your website to be completely accessible, but where you want to start is with those aspects of accessibility most likely to be detected by the commonly available software tools.
Richard Hunt: So, your roadmap to accessibility should start with making your website look good to the plaintiffs. It doesn't end with looking good to the plaintiffs, but that's where it starts. Of course, you don't want to wait to get sued. So, you want to, as I said, have a plan. You also want to have a policy and tell the world about your policy. Once again, of course, take this into account. But I believe that plaintiffs' law firms take it into account as well. So, one of the things your company should do is adopt a policy that its website will be accessible and have a plan to implement that policy and one the website, have a page that clearly states what the policy is and that can be linked to from every other page of the website.
Richard Hunt: That same policy statement page should also have resources to help disabled individuals who have some kind of trouble with the website. These are all things that first have the benefit of making you look good to the world, but also have the benefit of perhaps deterring plaintiffs who see that you have the policy in place, who see that you're taking all the right steps, and who therefore decide that since 97% of the websites out there are not accessible, maybe they will pass on to an easier target. I should add one thing about policies and budgets. You can adopt a policy within days. You need some assistance from a lawyer. But while remediating the website may be difficult, adopting a policy of website accessibility is easy.
Richard Hunt: From a technical standpoint, adding a new page, an accessibility page with a resource, is also relatively easy. So, there are some things you can do to make your website less likely to get sued that can be done within days as opposed to weeks or months, and also at very little cost. We've talked about the other things, now let's get on to this next polling question.
Jason Taylor: Yeah. So, this one, guys, is an interesting one after Richard talked about the importance of a web accessibility statement. How many people actually have one in place? Richard's point of saying creating a plan and a statement should be really fast, and there's no reason that a company shouldn't have an accessibility statement. It doesn't need to be a statement that you're accessible, it needs to be a statement about what you're doing to become accessible. It can change over time. It can be we're doing A for the next two years and over time, the accessibility statement can change.
Richard Hunt: Okay. The responses, you can see we have 47% have not taken the step and 20% aren't sure. All I can say is it's Tuesday. No matter how big your company is, the management should be able to adopt a statement, adopt a policy by Friday. I'd almost bet that if you talk to your IT people, you can have the statement on your website within a week. Now, I'm going to turn it back over to Jason to talk about some of the other details.
Jason Taylor: Yeah. I just wanted to pick up on that point as well that you made. Let's talk practically about how lawsuits, the majority of lawsuits, and I want to make it clear that there's a lot of lawsuits, within those lawsuits, there are individuals who are very serious about the accessibility of sites. They will go and they will experience a very specific thing that they want to do, whether that's buy a product or order food, and they will have a bad experience. They will bring a lawsuit because they can't do something.
Jason Taylor: But the vast majority of lawsuits that Richard talks about are more of a plaintiff working with a plaintiff lawyer in a very fast manner to find sites which are going to be the easiest to get a settlement from. The two biggest things that they do is they will scan the top pages. So, they will use a software tool to scan from the homepage and maybe test all the pages off the homepage, or test as many pages as they can against, as Richard said, the easiest to find violations of W3C. So, that's things like missing alt tags, form labels, links.
Jason Taylor: So, essentially, if your site comes up bad, for example, I go back to that scary point on the WAVE WebAIM 970,000, 97% of one million homepages, that opens up so much opportunity for plaintiff lawyers. The second thing they do is they check to see if there is an accessibility statement on the site. If there's an accessibility statement that clearly outlines that the company is already starting the journey to the three or four things that I talked about that are typically in a settlement letter, we're planning on remediating over a period of time, we've set our standard as WCAG, we've started, we're going to test with people with disabilities, we've hired a third party company to help monitor, to help document compliance, and we're going to continue to test and monitor.
Jason Taylor: If that statement sounds like that to plaintiff lawyers, most likely, they will look for someone who doesn't have an accessibility statement. As the survey just showed, at least 50% of companies, even the companies which are joining our call, which are obviously aware of web accessibility, don't have an accessibility statement. So, there's clearly lots of companies out there without accessibility statements, which will be probably seen as more potential to sue than someone who has an accessibility statement.
Jason Taylor: So, really, it comes down to attitude, it comes down to attitude about how the company thinks about accessibility. I just want to talk some practicalities about how you can change your attitude with inside the organization and how you can expose people with disabilities to the current organization. So, for me, the first thing that a company should do is engage with the disability community. There are different potentials. There's always a local blind organization. There's potential that you have employees or potentially have relationship of employees that have disabilities that can be part of your culture of understanding how they use a website and bring in a personal connection with inside the organization to understand why this effort is worthwhile.
Jason Taylor: Add in those users or a persona of a user to the personas that different organizations use inside your company today: design team, QA team, user testing team. Add a persona that is someone who is a blind user will ensure that they are becoming represented at different stages. Then there's also an opportunity to hire people in the disability community in a part-time position with inside even your IT team to help you with QA for things like screen readers. Changing the attitude so it's not something that has to be done, but getting companies and employees to connect with the outcome.
Jason Taylor: Connect with the outcome is, as Richard says, the most important aspect, which is the site then becomes usable by people with disabilities. I think if you get an organization to connect with people and make it a human aspect, you'll get a lot more buy in and a lot more traction to actually make sure that the accessibility's taken seriously. I think we're going to close up now with some questions
Bethany Sirven: Jason, yes. This is Bethany with UsableNet. I was looking through the questions right now to see if we have some. Okay. This is an interesting one. "If the website is in compliance and you have a good accessibility statement and you still get sued, what is your recourse? Can you get by without having to pay ransom money?" Those are their words. I did not call it ransom money.
Jason Taylor: I like the ransom one. I'll let Richard respond, but in our experience, if a site is accessible and they have a really good accessibility statement and they have a really good plan, they're not being sued right now. But if you are, the first thing you do, and I'm going to turn over to Richard, is obviously a negotiation with the plaintiff. So, Richard, who would you handle that if you had a client?
Richard Hunt: Right. The unfortunate answer is, well, this is a lawyerly answer, yes, you can get by without paying ransom money. But only if you're, one, willing to spend a lot of money winning the lawsuit. When I said that plaintiffs have priced these cases to settle, the best case, if you can prove your website is accessible and you put up the proper statement and so forth, in a typical federal court lawsuit, the best case is that you would file what's called a motion to dismiss, and the court would grant it at an early stage of the litigation. The legal fees that would be incurred in filing a motion to dismiss of that kind would be very close to, if not more than, the amount of money the plaintiff is going to ask to settle the case.
Richard Hunt: So, the ransom demands are made, are designed frankly, to make it irrational to fight the lawsuit. We do have organizations that are very vigorously fighting these lawsuits. The National Credit Union Association is one of them. That's how we're finding out what the law is. But from the standpoint of an individual business, those lawsuits would be irrational because they cost far more to fight than any possible benefit from a victory. As Jason said, you'll find that you're not being sued. I think that's true.
Richard Hunt: The plaintiffs lawyers are looking for the low hanging fruit, of which there is plenty. So, they don't need the problem of an accessible website, and it will improve your settlement position. But once the plaintiffs have filed the lawsuit, they're not going to go away for nothing, unfortunately. So, they will have to be paid something or they'll force you to spend more money on lawyers. It's too bad, but that's the law.
Jason Taylor: To that point, this is why we typically would recommend ... We've had clients before that have been really, really accessible, but not put up an accessibility statement because they're like, "Well, we don't want to bring attention to the efforts that we're doing because," and Richard can talk about this, but it really doesn't matter from a legal perspective on the ADA front. But we've found that companies who are quietly confident that they're accessible get sued because in my opinion, if you do a really good job of telling the world that you've done a great job and that you're really accessible, the plaintiffs are looking at stuff like that.
Jason Taylor: The plaintiff lawyers are looking at stuff like that, and it will reduce the potential for risk. Now, will a really lazy lawyer at one point maybe sue you? Yes. But that's a risk that you take in everything. But your risk is significantly reduced if you're accessible and you've got a great accessibility statement that documents the efforts that you're doing.
Richard Hunt: Yeah. I think that's true. As Jason said, a significant number of these lawsuits are being filed by people who are using a tool, like the WAVE tool. Those tools will return false positives. They will identify something as being a violation of WCAG 2.0 that is in fact not an accessibility problem. That's because the standards and the guidelines and the success criteria are not so absolutely mechanical that any kind of software can identify the problems. But, so a plaintiff who runs this software tool and gets an error message or two, their first thought would be, "We could file a lawsuit."
Richard Hunt: But if they see that you have an accessibility page and a policy and you've done the work of putting a link to that page, then their first thought has to be, "Look. So, I got this report back. It says there's one alt tag missing on the homepage. Do I want to invest my $400 filing fee and my time in suing these people based on that one error? Or do I want to go to the next website where there are going to be a hundred errors?" So, I think it does have that preventative effect, and equally important, as Jason said, the ADA is a no fault statute. You don't have to intend to violate the ADA to be liable for an ADA violation.
Richard Hunt: You can be completely unaware that you're violating the ADA and still get sued. So, since it's a no fault statute, there's no benefit to hiding it, to hiding from compliance. There's no benefit frankly to remaining willfully ignorant, which sometimes my clients will say. They'll say, "I don't want to scan my website because I don't want to know if it's bad," and the answer is no, the only bad thing that can happen if you scan your website, or if you don't scan your website, is that you won't know that you've got a problem because you'll get sued one way or the other. So, the accessibility statement's a good thing and knowing what your conditions are is an even better thing.
Bethany Sirven: Okay. We have a good question here. "What's the difference between a notice of noncompliance and settlement request vs. a lawsuit, and can the notice be ignored?" Can they just ignore the notice?
Richard Hunt: Sure. The difference between the notice of noncompliance and the lawsuit depends a little bit on the firm that has sent it. I'd say we have three kinds of law firms out there. At the bottom, let's say, are law firms that are sending out letters, a notice of noncompliance, or a letter of some sort just in order to make a quick buck. Sometimes, those law firms do not even have a plaintiff that could file a lawsuit. They just want to get a few thousand dollars and they'll go away. So, they've chosen the cheapest way to make a demand and make some money.
Richard Hunt: Law firms in that position can be fairly easily deterred from doing anything else by simply a strong push-back because they're thinking they can send a thousand letters, get 300 settlements, and what the heck. Right? The second group of law firms are sending demand letters with more information and with a stronger intent, or the stronger possibility that they will file a lawsuit if they have to. Those law firms may be deterred by a letter. But more important, even if they're seeking a settlement, it'll be a settlement that's easier to negotiate because they have not invested in the time and effort of filing a lawsuit.
Richard Hunt: The final group of law firms are those that simply file a lawsuit without a demand. Those are the most common. The ADA does not require re-suit demand. So, they can easily do that. Those law firms are going to want a monetary settlement. But typically, they have done at least some work. So, they are in a position where they are going to be able to negotiate with some strength. They're more likely to have done enough research to know that there are real problems with the website, so they're not likely to file suit over nothing. So, you have to take them more seriously.
Bethany Sirven: Okay. Another question, someone would like to know if there's a minimum number of employees that you have to have to be compliant.
Jason Taylor: I'm going to give that to Richard.
Richard Hunt: The answer is no. The Title 1 of the ADA, which governs employment, only applies to employers that have more than 15 employees. But Title 3, which is the part we're talking about, that deals with businesses and would include website accessibility, doesn't have any limit with respect to the size of the businesses, whether in terms of employees or revenues. It applies to literally ... Well, there are legal subtleties that it's not time for. But it would, in most cases, apply to every business that has a website.
Bethany Sirven: Okay, great. Just a couple more questions. "Is WCAG 2.0 a continuum of compliance? In other words, should companies try to achieve a certain level of compliance, 80%, 85%?"
Richard Hunt: This is Richard. I'll let Jason answer that from a practical standpoint. From a legal standpoint, the answer is we don't know because there are no regulations. The lawsuits that have been filed and the settlements that have been made assume that 100% compliance is both achievable and required, at least at Success Level AA. You have to understand that under WCAG Success Levels, there are three Success Levels.
Richard Hunt: Success Level AA is the medium level and does not guarantee full accessibility. But it's anticipated that if we ever have regulations that it will define how many failures you can have or when are you accessible, even though there are problems, but right now, we don't know that. So, 100% is the only standard that we know will work.
Jason Taylor: So, my answer is a slightly more practical one. I agree with Richard's legal perspective, but the practicality is that, as I think, as he indicated, you're not going to get sued for a few missing alt tags. A plaintiff company's not going to spend their money coming after you if you've got a small number of failures. The ADA doesn't write in what the compliance is. I think it's actually a failure of the W3C not to have an established way of just determining how good is good because one missing alt tag would actually mean that you fail one of the success criteria, which means that you'd be instantly, I think, around about seven, 93% compliance, right? So, about one missing alt tag seems to be quite a heavy penalty against compliance, right?
Jason Taylor: So, our approach is very practical, meaning we use a combination of three things when we're working a client. One is we're going to use automated tools, which obviously are available to everybody. We would ensure to make sure the clients pass all of that and continue to monitor with those. Right? So, if a missing alt tag appears, we want to make sure the client is addressing those things. We will also review the site with an accessibility expert that will typically use a range of assistive technology to help them determine whether, A, the top used assistive technology can achieve navigating through the site.
Jason Taylor: Things like keyboard, because most assistive technology use keyboards, and making sure things like when you're navigating around with a keyboard, you don't get stuck, and essentially making sure that the other "criteria", which are mainly around reviewing manually a cupboard. That gives us an ability to give a solid indication of where a client is. Then thirdly, which I think is very important from also a very, very practical point of view, is that we're involved people from the disability community, blind, low vision, other type of assistive technology, in the process. That combination should be backed up.
Jason Taylor: When we talk about having a third party confirm, we generate a letter of ongoing effort and conformance as part of our service where we indicate what part of the site or sites have been tested, the methodology we've used, our experience in terms of what improvements would be made over a certain period of time. Those letters of ongoing effort and conformance are just as valuable in legal cases as maybe a document that talks about compliance percentage, because essentially, in these cases, it's about presenting the effort and the plan and the ongoing investment in accessibility, as opposed to trying to get into percentages, because percentages could be detrimental to presenting especially a court case, because as I said, one alt tag could take your percentage to 93%, and that's not really reflective of how accessible the site is.
Richard Hunt: To repeat something that I think I said earlier that is important, there are a certain number of law firms filing these lawsuits, I think a very large percentage of law firms filing these lawsuits that are using a free software tool, like the WAVE tool, or another one. It's easy to use and doesn't have any significant cost to it. They're using those to find their targets. If you run those tools against your website and fix what they show, then in some sense, you'll be invisible to a large number of law firms that might sue you, even though you have other, frankly, much more serious accessibility problems because of the structure of the page or links in the page, and so forth.
Richard Hunt: So, if you want to, on your road to being completely accessible, mitigate your risk, the first thing to do is to figure out, what is the plaintiff going to see when they run their tool, and you fix that. Now, the sophisticated plaintiffs are running sophisticated tools and using individuals. You can't stop with the WAVE tool, but you can start there.
Jason Taylor: Yeah. Thanks, Richard.
Bethany Sirven: So, just a couple more questions. This one, I think is interesting. "What percentage of the actions are class actions vs. individual actions, and what are the implications to your strategy recommendations when the lawsuit is a class action?"
Richard Hunt: I don't have a percentage. The practice has been lawsuits filed in the State of New York are frequently filed as class actions. Lawsuits filed in Florida, which is the second most prolific state, and in California, which is lagging somewhat, are more likely to be individual actions. The real problem with a class action lawsuit is it adds a layer of complexity and expense to the defense of the lawsuit, therefore, in some sense, raises the settlement cost. But my experience has been that the plaintiffs filing class actions are not demanding a significantly higher amount of money to settle it.
Richard Hunt: They've switched to filing class actions because they know that it's an additional layer of threat, just as they file in New York because under New York state law, they can get damages, and that adds another dimension of threat. But despite that, in most cases, their ultimate goal is to make as quick a settlement as they can, provided that you'll agree to make the website compliant.
Bethany Sirven: Okay. Then we have the question, "How do you find a nerd?" The nerd that you mentioned?
Richard Hunt: Well, Jason's phone number is on the slide that you're looking at right now. That's my answer.
Bethany Sirven: Okay. All right. So, I think we are running a bit late on time. We've gotten the question, "Will the slides be sent out?" Yes. You will get an email with a link to the slides where you can download those as well, and that email will have a link to the recording. One the recording page will be the transcript and closed captions. So, those will be available within the next week or so. It does take some time to get those closed captions up. But all registrants will receive access to those materials.
Bethany Sirven: So, thank you so much to our presenters, Jason, Richard. Thank you so much for sharing your expertise with us today and thank you to everyone who joined the webinar. We hope that you found it beneficial. Please take a couple minutes to fill out the survey that will pop up at the end. Just let us know how we did and how you found the presentation. Thanks so much, and the webinar is now ended.
The information contained in the webinar is intended to supply general information to the public. It is not intended to constitute legal advice on any subject matter.
Ready to learn more about digital inclusion? Request a consultation with one of our subject matter experts and see how UsableNet can help tackle the challenge of making your website accessible to all.
For more, visit our Web Accessibility Blog to read about our perspective on relevant news and accessibility best practices.