How can I avoid getting sued for having a non-accessible website? With thousands of demand letters sent, and more than a hundred lawsuits filed(1), this is an important question for any business that has a consumer facing website. It is widely assumed based on past DOJ consent decrees, existing non-ADA regulations and the settlements made by private litigants that “accessible” means compliant with WCAG 2.0, success level AA.(2) Most businesses find, however, that it is a long and rocky road from today’s non-accessible website to a primary website that meets the WCAG 2.0 standard. Until the journey’s end there is no certain defense to an ADA lawsuit.(3) On top of that, it is universally agreed that a dynamic consumer facing website will inevitably fall out of compliance unless the folks who create and maintain it are constantly vigilant.
We are not IT folk(4), but we have researched this problem for our clients, and we found at least two ways to mitigate the litigation risk in a way that is more immediate that full WCAG 2.0 compliance for a business’s primary web page.
The first, and most immediate, is creation of a helpdesk whose operators can guide a disabled user through the website, help with accessibility issues and even assist with transactions. Alternate access by phone was once recognized by the DOJ as a solution for business websites. Based on technological advances DOJ and other regulators no longer accept phone operators as an accessibility solution, but since accessibility takes time, an investment in this kind of service permits a strong argument that the business owner has mooted any claim of non-compliance. It can be set up relatively quickly because links to an accessibility notice and information on where to call can be added with very little difficulty to a primary web site.(5)
A second and even final step for many businesses could be the creation of a “conforming alternate website” that duplicates the functionality of the primary website in accessible form. WCAG 2.0 specifically recognizes conforming alternates as a means of conforming with the WCAG 2.0 standard, so such websites would appear to meet the de facto standard being imposed by the Department of Justice and private litigants. Based on interviews with a accessibility consultants creation of a conforming alternate website takes less time and can be less expensive than fixing a primary business website. It also appears that conforming alternate websites can be dynamic; that is, to some extent the alternate website updates itself whenever the primary website changes. This at least partially addresses the problem of websites falling out of compliance with WCAG 2.0.(6)
Whether a concierge service and/or conforming alternate website is the end of the accessibility road for a business may depend on changes in technology or regulations, but at present they seem to be two of the three most immediate ways to mitigate litigation risk. The third, and by far the easiest, is to adopt, without any delay, a strong policy in favor of web accessibility. Except for internal bureaucratic issues a business, with a little help from counsel, can draft and adopt a basic policy in less than 24 hours. A business that does not know where it is going is unlikely to get there, and a declaration of intent is a critical first step to persuading the courts that ADA claims based on present inaccessibility are moot. Every journey begins with a single step, and that step may be hiring a lawyer.(7)
(1) Our fellow ADA bloggers at Seyfarth Shaw have gathered the statistics. Federal Website Lawsuits Spike
(2) See the W3 website for more details. Web Content Accessibility Guidelines version 2.0.
(3) Success with a mootness defense based on ongoing efforts to comply with ADA is difficult for reasons explained in Kennedy v. Nick Corcokius Enteprises, Inc. 2015 WL 7253049, at *1 (S.D. Fla. Nov. 17, 2015).
(4) See our earlier blog “You Need a Nerd, Not a Lawyer” but remember, you need a lawyer too.
(5) Doug Loo of Xpanxion provided a great deal more helpful information on this kind of concierge service than we have room to include here.
(6) Jason Taylor and others at Usablenet provided very helpful technical information about conforming alternate web pages and web sites based on their own “dynamic accessible view” technology.
(7) And that note requires that we point out that this blog may be considered advertising material under the relevant disciplinary rules of the State of Texas.