5 minute read
How Companies Should Mitigate the Risks of Digital Accessibility Litigation
By Allison Kratz
Digital accessibility is emerging as a prominent risk in the compliance landscape. While the Americans with Disabilities Act (ADA) has long addressed accessibility, companies are now placing greater emphasis on applying these requirements to websites and technology. This activity coincides with a spike in digital accessibility litigation and demand letters.
It’s important that in-house counsel learn about the legal landscape and accessibility requirements under the law.
THE LEGAL BASIS FOR LAWSUITS
The ADA provides individuals with disabilities the right to access public places of accommodation (any business open to the public). While originally meant to address physical locations, the Department of Justice’s (DOJ) letter of 2018 established that its original language also applies to the websites of places of public accommodation. However, the letter did not indicate how to make websites comply with the ADA.
In 2022, the DOJ issued further guidance and cited the Web Content Accessibility Guidelines (WCAG) for private entities and Section 508 guidelines for government and public services as the standard for website accessibility.
The WCAG is a set of guidelines developed and published by the World Wide Web Consortium, an organization whose mission is to “develop open standards for an interoperable web to meet requirements for accessibility, internationalization, privacy, and security.” The current version, WCAG 2.2, outlines success criteria for websites to create an accessible experience for those using assistive technologies.
For example, the guidelines require that images include descriptive alt text to assist users with visual impairments using screen readers and they provide specific requirements for sufficient color contrast between text and background to ensure readability for individuals with color vision deficiencies. While the DOJ has adopted the guidelines, federal law has not codified it as a standard for all businesses with an online presence.
Due to the lack of clarity, there has been an uptick in federal cases filed over digital accessibility. Plaintiffs are alleging a violation of the ADA due to inaccessible content or coding on a business’s website, often citing the WCAG guidelines. The absence of a clear federal law has led to a fractured legal landscape on digital accessibility, relying primarily on federal district court decisions.
DIGITAL ACCESSIBILITY LITIGATION LANDSCAPE
Since 2018, we have seen a steady increase in the number of cases filed in state and federal courts over digital accessibility. In 2023 alone, there were over 4,000 cases filed and hundreds more demand letters. The vast majority of cases are currently filed in state and federal courts in New York and Florida due to precedent and state laws favorable to plaintiffs, with Pennsylvania and California trailing behind.
These cases will almost always begin with a demand letter sent by one of a handful of plaintiff firms. The demand letters usually consist of a drafted complaint with a templated letter alleging violations of the ADA and several state laws (in California, the Unruh Civil Rights Law and in New York, the NY State Human Rights Law, the NYC Human Rights Law, and the NY State Civil Rights Law). The drafted complaint highlights errors seen on an automated testing tool or issues with multimedia content on the website.
RECENT LEGISLATION DEVELOPMENTS
In recent years, several bills related to digital accessibility have been introduced in the US Congress. Introduced in the 118th Congress alone were the Websites and Software Applications Accessibility Act of 2023, the Communications, Video, and Technology Accessibility Act of 2023, the ACCESS Act, and the TLDR Act.
While there are current digital accessibility laws and pending legislation in several states, the requirements mostly apply to public and governmental entities. However, a bill out of California, Assembly Bill 1757, with implications for public and private businesses, has gained significant traction. Although stalled for this year, AB 1757 is expected to be picked up again in the 2025 legislative session.
MITIGATING THE RISK
One common factor among demand letters, cases, and pending legislation is that they all refer to the industry standard for digital accessibility — the WCAG.
Using the WCAG 2.2 guidelines, here are some tips to minimize your company’s exposure to digital accessibility litigation and other risks:
Conduct an accessibility audit of your website. Keep in mind that you may have several websites to test, such as your e-commerce website, corporate website, and investor relations website. You should contact an accessibility professional or start with a free tool like Axe by Deque.
Conduct a vendor audit. Even if you outsource to a single website vendor, several vendors can be part of your website. To fix the barriers, you will need to go to the source of the code, which may not be the obvious vendor.
Understand what laws your company is subject to. As your website may be available globally, you may be subject to jurisdiction in states or countries in which you may not physically operate.
Discuss accessibility violations with your website vendor(s). Reach out to your website vendor with your accessibility findings and ask whether they can remediate the barriers.
Make a plan to remediate any accessibility barriers present and schedule ongoing testing. Many accessibility barriers can occur even after you have remediated your findings. Websites that are frequently updated are likely to have accessibility barriers. Create a plan to test and remediate any barriers regularly.
Looking at your website through the lens of digital accessibility is a great, while also staying abreast of changes in the legal landscape.
