Businesses must proactively ensure that their commercial websites are easily accessed by people with visual, auditory, motor and/or cognitive impairments or brace for litigation throughout the United States.
A growing number of lawsuits claim that websites that are not reasonably accessed by the disabled violate the U.S. Americans with Disabilities Act (“ADA”). See e.g., McDonald’s, Kmart, Others Settle Suits Over Website Access for the Blind, Chicago Tribune, Nov. 6, 2017 (describing four lawsuits brought by the same law firm on behalf of the same group of plaintiffs). Accessibility concerns have most commonly been raised regarding public facing websites by which users engage in transactions or receive goods and services. However, accessibility concerns have also been cited respecting companies’ internal employee intranets and web pages advertising job offerings to the public.
The ubiquity of internet searches in everyday life means that the disabled often encounter frustrating websites. In addition to those persons genuinely aggrieved by a difficult website experience, there are many recurring “career plaintiffs” (and a growing cottage industry of lawyers) who look to manufacture litigation in order to effectuate change and/or extract settlement payments. Such plaintiffs quickly file cookie-cutter complaints, often targeting entire industry sectors. While the current litigation has tended to target large, well-known retailers, business should expect these lawsuits to proliferate and reach small and mid-market companies.
Significantly, under current law, businesses can be sued for website accessibility violations without prior notice. In other words, a business might first find out about an ostensible accessibility concern with its website upon receiving a demand letter or even a formal legal complaint filed against it. Reacting to an existing legal claim means that, in addition to the expense and distraction of litigation, accessibility issues get resolved with plaintiff’s counsel’s oversight, and on the plaintiff’s timeline. The bad publicity associated with such litigation can also expose a business to secondary issues — such as generalized customer relations concerns and/or potential government enforcement actions.
Besides avoiding the many problems attendant to litigation, there are compelling business reasons for a company to promptly and proactively take steps to make its websites more accessible to the disabled. Indeed, making it easier for more customers to find, engage and buy from the business is often its own reward. Likewise, it is easier for a business to retain customers as they age if the company website is accommodating to those with diminished eyesight, hearing and motor skills. Implementing enhanced website accessibility standards might also improve search engine optimization, making the company’s website higher profile during routine internet searches. In addition, pre-emptively ensuring website accessibility can reinforce a business’ reputation as a good corporate citizen.
Business can take pre-emptive action by modifying their websites to add: (i) captions and transcriptions of multimedia content on the site for hearing impaired users; (ii) spoken descriptions of photos to assist the visually impaired; (iii) options to navigate online pages point-to-point using keyboard commands (not a mouse) to access different levels of headers and text for those with fine motor skills impairment; and (iv) features, such as “alt text” in the code that enable the website to work with mass-market screen readers. Addressing web accessibility proactively, and before any lawsuit arises, lets the business take charge — and means that website reconfiguration (and/or replacement with a site that is “accessible by design”) and attendant issues such as testing, training, and maintenance, can be appropriately budgeted, staffed and planned within the business and financial structures of the company, and not based on imperatives set by a court or plaintiff.
Currently, there is no single, formal web accessibility standard that has been formally endorsed legislatively or judicially. However, the World Wide Web Consortium (“W3C”) sponsors the Web Accessibility Initiative (“WAI”), which provides a widely respected and generally accepted set of website accessibility guidelines, technical reports, educational materials and other documents that relate to different components of web accessibility. Many private litigation settlement agreements provide that the offending website that is the subject of the dispute should be reconfigured to meet the WAI guidelines. Accordingly, website owners should consider proactively redesigning their sites to conform to WAI guidelines. The link to the W3C guidelines is: http://www.w3.org/standards/webdesign/accessibility.
Skilled counsel can assist you in evaluating your situation, controlling the cost of any website reconfiguration or lawsuit, and making tactical decisions on how to comply with web accessibility concerns. Proactive attention to website accessibility should result in reduced litigation and compliance risk, lower long-term costs, and increased business from customers. If you have questions or concerns about web accessibility, please contact Jonathan Faust at (212) 660-9555 or by email at email@example.com.