How to Avoid Getting Sued for a Website that Isn’t Accessible

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How to Avoid Getting Sued for a Website that Isn’t Accessible

Posted by: David Hall

A photograph of the storefront of Johnnie Chuoke's hardware storeTrudy Lesage* owns Johnnie Chuoke’s Home & Hardware, a mom-and-pop hardware store in the Castle Hills neighborhood of San Antonio, Texas. It’s mostly a brick-and-mortar operation, but they do have a website that offers online ordering. In January, 2021, they got a letter from a law firm in New York threatening a lawsuit because their website was not accessible to people with disabilities. The lawyer had a client, he said, who was blind and was also from New York, who had tried to order a hammer on their website and was unable. Trudy smelled a setup, but what could she do? She elected to pay the lawyer the $20,000 he demanded, figuring it was cheaper than going to court. Then she had a stop-gap accessibility plug-in installed on the website, added a statement that they no longer accepted out-of-state online orders, and hired a company to do a brand-new website that will be fully accessible.

Since 2021, stories like this have become more and more common all around the United States. Currently, more than ten website accessibility lawsuits are being filed every day in the United States. Let’s give you some background about why this is happening.

Accessibility symbol, showing a stick figure in a wheelchairThe Americans with Disabilities Act became law in 1990. At the time, it was directed only at eliminating physical barriers for people with disabilities. Recently, however, it has been interpreted to apply to websites. It was back in 2010 when the United States Department of Justice announced that it was going to develop rules that would apply accessibility standards to websites. The DOJ actually never get around to doing that. Finally, in December 2017, they formally announced that they weren’t going to issue any rules. There was a growing body of civil case law about website accessibility, and they felt that would suffice.

While in most cases businesses prefer not having government regulations, in this case leaving the matter in the hands of the courts has left things rather fuzzy. What we have now are varying interpretations of the law, depending on the part of the country and the judge involved. Lawyers are smelling opportunity in this environment and after this decision by the Department of Justice there was an explosion of lawsuits. Fully one-third of all ADA lawsuits today concern website and app accessibility. In 2015, only 60 website accessibility lawsuits were filed in federal court. In 2017, this had increased to 814. In 2018, that rose to 2,258. After a pause in 2020, due to the pandemic, lawsuits in increased again to new record levels. 2024 saw over 4000 lawsuits filed.

But even that alarming number doesn’t fully quantify the risk. Trudy never faced a lawsuit—only a demand letter—and we don’t have any statistics on the number of demand letters being issued.

The organization that writes accessibility standards is the World Wide Web Consortium. They’re called Web Content Accessibility Guidelines, or WCAG. Version 2.2 was released in October 2023, and that is considered the current gold standard for website accessibility. The problem with these guidelines is that they are very stringent, and costs for making a website fully compliant have been estimated at anywhere from $3000 to $50,000. Costs like that will probably not be within the budget of many clients. But fortunately, there is a more reasonable solution.

Making Website Accessibility Affordable

There are a lot of theories being floated about what exactly is required to make a website accessible. There are companies offering plug-ins that they say will do the trick, costing a few hundred dollars a year. And then there are accessibility experts quoting four- and five-figure fees to do the job, with maintenance costing hundreds of dollars per month.

The final authorities on this issue are the courts. So I decided to find out what the courts were actually doing. Through my research I discovered a New York lawyer who specializes in defending businesses against website accessibility lawsuits, and he was gracious enough to answer all my questions, even granting me a couple of extended telephone interviews. His name is Martin Krezalek. He is a partner in the BlankRome law firm in Manhattan, has successfully defended companies around the country in website accessibility litigation, and frequently publishes and lectures on this subject.

A key point he made to me is that the Department of Justice made a statement in September 2018 that made it clear that websites do not need to be strictly compliant with WCAG standards. If they are reasonably compliant, they meet the standards imposed by the Americans With Disabilities Act. Here is what they said:

“Absent the adoption of specific technical requirements for websites through rulemaking, public accommodations have flexibility in how to comply with the ADA’s general requirements of nondiscrimination and effective communication. Accordingly, noncompliance with a voluntary technical standard for website accessibility does not necessarily indicate noncompliance with the ADA.”

The “voluntary technical standard” refers to the WCAG. Krezalek said that he has successfully argued in court that this statement means that your website doesn’t need to be fully compliant with the stringent WCAG guidelines. This brings the cost of compliance to a much more reasonable level.

In his seminar that I watched on YouTube, he gave a picture of what is going on in the courts. At first, these lawsuits started being initiated by individuals with disabilities who became frustrated with a website and didn’t get cooperation from the business. Out of that frustration, they hired a lawyer to get satisfaction. But then that changed and it became the law firms that would initiate the complaint. Currently, about two-thirds of the lawsuits are being filed by a group of only ten firms. What they do is pick an area of focus, usually by industry, sometimes by geography, and they compile a list of businesses with websites. Then they run accessibility scans of the websites. Scans of most websites will come back with a list of errors. They then send a demand letter listing the errors. Sometimes they will just file the lawsuit. They will then make a demand to settle, with the idea of making it less costly for you to settle rather than go to court. Over 90% of these cases, he said, never go to trial.

A photograph of a panel of hardware tools, including a hammer, carious screwdrivers, etc.This appears to be exactly what happened to Trudy Lesage’s hardware store. Her store rarely gets any orders from out of state, and the supposed “victim” could have easily and more cheaply ordered a hammer from any number of large online companies. It appears that the lawyer just wanted to make a quick buck and my guess is that they have arrangements with several “victims” who may get a couple hundred dollars for their participation in each threatened lawsuit, with the law firm pocketing the rest.

Krezalek told me that these lawyers will usually use the WAVE Web Accessibility Evaluation Tool. This is your key for avoiding a lawsuit. Scan the website in question with this tool. If the scan comes up fairly clean, you can be reasonably confident the lawyers will leave you alone.

There are some widgets that clients can have installed on their websites. These widgets allow the visitor to adjust the contrast, text size, and other website elements. Some of them will convert the website into a bare bones text-only website when the user clicks them. But while these tools address some accessibility issues, usually they don’t address the most critical ones. In his seminar, Mr. Krezalek said, “We often get the question as to whether overlays and widgets will protect us from lawsuits and the answer is probably not.”

In my business, The Website Factory, we create websites. Some of our competitors are routinely installing an accessibility widget. Curious, I had our team check seven random websites that had no accessibility widget and seven with one of various accessibility widgets. Interestingly, the websites without the widgets scored more accessible, on average, than the websites with the widgets. The lesson? Don’t let yourself get a false sense of security out of installing an accessibility widget.

So, What Should You Do?

My life experience with lawyers, Google, and the internet, tells me that this is only going to continue to grow as an issue. To me it seems a no-brainer to make your website accessible now rather than wait to hear from a lawyer. When you do, you’ll have to pay off the lawyer and then go back and do the work to make it accessible anyway.

Industries being targeted right now are travel, hospitality, and retail. We are also hearing anecdotal reports of dentists who have been targeted. Mr. Krezalek mentioned that urologists in California are also being targeted. If you know some lawyers, you know that they aren’t going to leave this issue alone as long as there are money-making opportunities given them by any websites that aren’t accessible. In addition, Google is giving signals that it is starting to take accessibility into account as a ranking factor. Pull up your website in Chrome, right click, select “inspect” and a window will pop up. Select “Lighthouse” from the menu across the top of the window. You will have the option there to ask for an accessibility report, which will give you a picture of how Google rates the accessibility of your website. You would like a rating at least in the high 90s. Google’s interest in this suggests that they may be already using accessibility as a ranking factor.

I have heard some webmasters say that as long as you show some kind of good-faith effort that you are trying to make your website accessible, that you’ll be okay. This strikes me as a very naive approach that comes from a lack of experience with the United States legal system. You aren’t dealing here with issues of right and wrong and basic fairness—you are dealing with lawyers cruising the internet looking for targets. If your website isn’t accessible, you’ve made yourself a target and you will likely just agree to settle and never have a chance to tell your story of good intentions to some judge. And even if you did get that chance, the judge is not likely to care about your good intentions. The issue that will be argued is: Could this disabled person buy the hammer or not?

Here’s what our company is doing. All our new sites are coded to be accessible. For older websites, we are approaching our clients and warning them that they could be vulnerable to a lawsuit if their website isn’t accessible. We then scan the website with the WAVE tool and estimate the amount of work to make the site accessible. Mr. Krezalek told us that if this tool comes up with fewer than five major errors, the website is probably not going to be targeted. My gut, however, tells me to shoot for three or fewer. Our technical team finds that it isn’t that hard to get to that point.

In addition, we have signed a contract with accessiBe, a company that has developed a software solution that re-programs the website to meet certain accessibility requirements. They white label this for us. We have a couple of clients who are extra nervous about this issue, and we offer to install this plug-in for them for a modest cost.

A Recent Court Decision Narrowing the Scope of the ADA

Last September, the U.S. District Court for the Southern District of New York, in the case of Mejia v. High Brew Coffee, ruled that a “stand-alone website is not a place of public accommodation under Title III of the ADA.” While this decision is only at the district court level, it can be quoted anywhere as an important precedent, and should give you a sense of relief if your business doesn’t have a physical location.

Defraying the Cost of Making Your Website Accessible

One final happy note. If your business has fewer than 30 employees or gross revenues of less than $1 million a year, a provision in the IRS code allows you to take a tax credit of 50% of the cost of making your website accessible, up to a maximum credit of $5000. When we write our website contracts, we break out what we estimate to be the extra cost of making the site accessible and quote you the dollar amount that you can take to your accountant so you can claim that tax credit.

(* A note about my sourcing—my information about the hardware store originated with a tip from a client in San Antonio. I called the store, connected with Trudy Lesage, and she graciously allowed me an interview.)

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