When Good Sites Go Bad: the Growing Risk of Website Accessibility Litigation

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From The National Law Review:

For a growing number of companies, websites are not only a valuable asset, but also a potential liability risk. In recent years, the number of website accessibility lawsuits has significantly increased, where plaintiffs with disabilities allege that they could not access websites because they were incompatible with assistive technologies, like screen readers for the visually impaired.

If you have never asked yourself whether your website is “accessible,” or think that this issue doesn’t apply to your company, read on to learn why website accessibility litigation is on the rise, what actions lawmakers and the courts are taking to try to stem the tide, how to manage litigation risk, what steps you can take to bring your company’s website into compliance, and how to handle customer feedback on issues of accessibility.

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In recent years, there has been a nationwide explosion of website accessibility lawsuits as both individual lawsuits and class actions. Plaintiffs have brought these claims in federal court under Title III of the Americans with Disabilities Act (ADA) and, in some cases, under similar state and local laws as well. In 2018, the number of federally-filed website accessibility cases skyrocketed to 2,285, up from 815 in the year prior. In the first half of 2019, these cases have increased 51.7% over the prior year’s comparable six-month period, with total filings for 2019 on pace to break last year’s record by reaching over 3,200.

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The ADA was enacted in 1990 to prevent discrimination against people with disabilities in locations generally open to the public (known as public accommodations). The ADA specified the duties of businesses and property owners to make their locations accessible for people with disabilities, but it was enacted before conducting business transactions over the internet became commonplace. With the rapid growth of internet use, lawsuits emerged arguing that websites were places of public accommodation under the meaning of the ADA.

These claims have presented serious questions about whether, when, and how website owners must comply with the ADA. There is no legislation that directly sets out the technical requirements for website accessibility. And while the U.S. Department of Justice (DOJ) has stated that “the ADA applies to public accommodations’ websites,” it has not clarified exactly what standards websites must meet to comply with the law. In the absence of clear guidance, courts considering the question have frequently looked to the Web Content Accessibility Guidelines(WCAG), first developed by the World Wide Web Consortium (W3C) in 1999, but most recently updated in 2018.

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Knowing your level of exposure is an important first step. Individual risk is currently based on three factors:

• Location: Brick and mortar locations, the delivery of products, or the performance of services in New York or Florida heighten a company’s exposure.
• Industry: The present trend shows that retail, food service, hospitality, banking, entertainment industries, and educational institutions are especially at risk.
• Current website structure: Sites with e-commerce functions or purchased from third-party developers not currently in compliance with WCAG standards are popular targets.

Unfortunately, it is often difficult to predict the cost and complexity of bringing a website into WCAG compliance based simply on viewing it. An audit of the source code is often required. That said, you can start with a review of your site and develop plans and processes for accessibility. The first steps can include:

• Assess current compliance: Use free online tools like wave and chrome vox and/or enlist a third-party audit to help you understand your current level of accessibility.
• Plan for future compliance: Create an overall plan for achieving accessibility on a timeline that makes business sense.
• Take immediate action: Adopt first-step improvements that can be implemented immediately, and create a process for considering accessibility before all future implementations.

Link to the rest at The National Law Review

In general, this type of litigation is handled by attorneys on a contingency-fee basis, which means that an assessment of how large the defendant is and whether he/she/it has liability insurance to satisfy a claim are important preliminary steps counsel is likely to take.

This means that AT&T is more likely to be sued than Janet Johnson, aspiring romance author with a website, is.

PG ran the free online tool mentioned above, WAVE, on TPV, and the program reported over 100 items PG should fix so TPV is accessible. One example is that the photo of the old book at the top left of each page of TPV has no ALT tag that would tell visually-impaired visitors to the blog using a screen reader what the content of the photo is.

The other free online tool mentioned in the OP, ChromeVox, is a Chrome screen reader plugin. Once installed and activated, you can hear what a vision-impaired visitor to your website will encounter.

The OP has provided PG with added impetus to bring the WordPress Theme for TPV up to date. He ran a Google search for ada compliant WordPress themes and found an extensive list.