As the shifting of commerce to the digital sphere has been growing by leaps and bounds, the volume of legal actions in response to the lack of web accessibility on business sites has skyrocketed reaching a tipping point of almost 180% increment in 2018. However, these figures only indicate the number of lawsuits actually filed in courts of law and not the real number of demands submitted to companies on issues of web accessibility.
Rapid digitalization has compelled accessibility standards to be in constant adjustment, making small and medium businesses (SMB) an easy target during the current spike of ADA web accessibility lawsuits.
When analyzing the uptick and the current legal trend of digital accessibility, several factors come into focus. One thing is sure, providing an accessible solution for users and customers is much more than a strategic way to prevent web accessibility lawsuits, it's a business commitment with social impact. In 2019, digital accessibility has become a fundamental principle for all marketers and businesses who understand that users’ needs always come first.
If you want to keep your business ahead of today’s internet-driven world and out of risk from the ongoing rise of ADA web accessibility lawsuits, here’s all you need to know about the legal landscape trend for 2019.
Why ADA Website Accessibility litigations present a high risk to small businesses?
In a massive countrywide survey assessing American lawsuits, researchers identified over 2,200 cases that were filed in 2018 compared to only 816 during 2017. That’s a whopping 180 percent increase over the course of just one year. However, these numbers only indicate the number of lawsuits actually filed in courts of law. Assessing the total number of such complaints or ‘demand letters’ as they are referred to in legal jargon, is difficult to quantify as they never become part of the public record. Nonetheless, in the domain of accessibility complaints, field experts estimate the number of lawsuits filed to represent only 5% of 40K demand letters sent in 2018.
This rise of ADA lawsuits may have been noticed because of the big cases (Domino's, Nike, Beyonce, you name it) but the real target has been small and medium businesses. It’s estimated that 60% of ADA lawsuits filed in federal and state courts in 2018, were made against small and medium businesses in the retail industry.
What makes small businesses a vulnerable target?
SMB owners have only, in the past four years begun to understand that providing digital accessibility should be a must in their business plan. But even on the pipeline, making your website accessible is much more than using the right HTML structure. It is true that not every SMB has an affordable way to make their sites ADA (or WCAG) compliant when they are just getting by financially.
Depending on the scope of the project, the cost of accessibility services -not to mention audits and maintenance- can go from thousands to tens of thousands every year.
Even after you make your website accessible, any update on the site’s content can make your website inaccessible in a matter of seconds exposing your business to be sued more than once. The dynamic nature of websites demands from web accessibility its constant maintenance.
What are the risks small businesses are facing?
Some critics called this wave of web accessibility lawsuits “legal extortion,” As plaintiff lawyers leverage the fact that often small businesses, like mom and pop stores, don’t realize they are doing anything wrong and are left to settle for between $20,000 and $50,000.
To begin with, the cost of defending such lawsuits can be crushing, even for a medium business that does have a sizable budget. At the end of the day, meeting a settlement agreement for an average of $35,000 and committing to fixing your site accessibility issues in order to become ADA compliant seems much more affordable than the risk of fighting in court and facing huge fines and attorneys' fees.
Unfortunately, this trend also exposes business owners who are sued under the ADA complaint to pay the plaintiff huge compensations in the concept of damages, instead of giving them the opportunity to fix the site.
The implications of these findings are clear: lack of accessibility has become a major liability for any company operating on the web today. But for businesses to really understand the consequences of this trend, it’s worthwhile unpacking the phenomenon of accessibility lawsuits a bit more.
What factors contributed to the rise of ADA web accessibility lawsuits?
In analyzing the uptick in accessibility lawsuits, several aspects come into focus.
The most obvious being the shifting of commerce to the digital sphere. The booming industry of e-commerce hit $517 billion in 2018, up from $449 billion the previous year. Online business is also representing more and more of the total U.S. market. In retail, for instance, web-based purchases have been on a steady rise, now representing nearly fifteen percent of all retail spending. The higher frequency of online business has simply made it more likely complaints will be levied against companies operating in this domain. Adding to this is the fact that the option of buying digitally has given access to many disabled people, many of whom are unable to leave their homes for ‘regular’ shopping experiences.
But perhaps the most important element has been the spreading of awareness. As accessibility cases have increased in both the number of suits filed as well as their scope, the word is finally out: disabled people do in fact have legal recourse if prevented from online access. This is also related to the emerging market of 1.3 billion people with disabilities confirmed by Baby Boomers, which together with the new generational workforce, have introduced an approach towards accessibility different from previous generations. Millennials and Gen-Z were the ones to teach the market the need for more inclusion initiatives and equal access.
About prevailing plaintiffs and the defendants’ fair in ADA lawsuits
When addressing legal liability in any area, companies must keep in mind the incentive structure for going through with a legal complaint. As far as accessibility goes, the current legal environment in the U.S. is making it very advantageous for disabled people to sue. In many areas of law, the investment in legal fees is a deterrent for potential plaintiffs. When it comes to accessibility complaints, this is not the case. The 1990 Americans with Disabilities Act (ADA), the legal basis for all accessibility suits, is very clear: the law awards attorneys’ fees to prevailing plaintiffs but not to prevailing defendants. This creates a strong incentive for plaintiffs who feel they have a case to file. It also encourages businesses who get slapped with demand letters to settle as soon as they can.
The warping incentive landscape even directs plaintiffs to which courts they should file their complaints about a better chance at winning. The state of accessibility suits in California is a case in point. There is no lack of accessibility awareness in the Golden State. Indeed, California continues to lead the nation in the number of all ADA Title III lawsuit filings in federal court. Many experts contribute this to the fact that it is the only state to set a minimum dollar amount for damages, which they have set at $4,000.
When you get down to the brass tacks of who’s coming out on top in accessibility cases, the numbers are clear. Defendants are not doing well. At the highest levels of America’s legal structure, the obligations on the part of businesses have been well established. The Department of Justice (DOJ), through a series of findings and settlement agreements as well as a 2018 official letter to lawmakers, has taken the position that web accessibility is expected and mandated as part of compliance with the ADA.
The concept of accessibility is ever-changing, but one thing is certain, providing equal digital accessibility is the right move for any business who understands the value of reaching their customers.
If a company ignores the direction taken by businesses from different fields embracing web accessibility and decides to evade legal obligations, it won’t be protected from legal actions. We all know accessibility can get really costly when not taken care of properly. Now that you have a clear overview of the incentives and factors behind this ongoing wave of web accessibility lawsuits, the accessibility of your website should be your paramount in order to welcome all users.
The answer to keeping your business or client’s safe and ahead of the ongoing wave of web accessibility lawsuits is simple, web accessibility is the way.