Clients facing Americans with Disabilities Act ("ADA") and state web accessibility claims routinely want to know how to win. The answer is not simple, and it is not so clear what "winning" means.

There are procedural steps and substantive legal issues that can help address an ADA or state/local law web accessibility claim, but "winning" a web accessibility case requires a somewhat different analysis and approach. Winning a web accessibility case potentially can mean proving that it is legal for a business to discriminate, a result that could lead to negative publicity and the loss of a large group of consumers. Such victories could discourage others from taking steps to be more inclusive and accessible. The better path may be winning over the public's perception of a company's reputation and providing accessibility to a significant number of challenged consumers.

This article first explores whether it makes sense to vigorously defend a web accessibility case or to spend time and resources trying to improve an entity's public image and consumer inclusion to enhance its reputation and ability to appeal to a significant demographic of persons with disabilities

Sometimes, however, entities are wrongfully sued and legal defenses may be appropriate. Thus, this article then discusses how to mount a vigorous defense to a web accessibility lawsuit.

THE DEPTH OF THE PROBLEM

Many articles have been written about the importance of a website to business. Whether it is "Importance of a Website: Nine Great Reasons Why You Need One,"1 "Top 10 Reasons Why Your Business Needs a Website" 2 or "20 Reasons Why Having a Website Is Important,"3 one thing stands out: having a website is no longer an optional accessory for a business.

Operating a website is critical to the success and growth of a business. A website provides visibility and credibility and offers a business the ability to provide information and customer service 24 hours a day, and in many cases allows customers to make purchases at any time without interacting with paid staff. However, if the website is not accessible to persons with disabilities, the business will likely lose customers and credibility and even subject itself to a lawsuit and the negative publicity that comes with being sued for discriminatory acts.

Each February, WebAIM, a Utah State Universitybased nonprofit, releases a report on its analysis of the home pages of the top one million websites. In February 2021, it found that across those sites there were more than 51 million distinct accessibility errors, an average of 51.4 errors per page. In addition, it detected failures of the Web Content Accessibility Guidelines ("WCAG") 2.0 on 97.4 percent of home pages. Since WebAIM only detects errors through automation, and automatic testing cannot detect all possible WCAG failures, WebAIM opined that the actual conformance level might be even lower. Accordingly, most websites are exposed to potential web accessibility lawsuits.

WebAIM is not the only one tracking the lack of compliance. AAAtraq, a vendor that monitors compliance and educates companies on how to comply, while offering "litigation support and costs coverage," claims that "in over 90% of websites noncompliance can be easily demonstrated." Regardless of whether the exact figure is 90 percent, 95 percent, 97 percent or more, it is clear the vast majority of websites fail to be fully inclusive for those with disabilities. The problem is so pervasive that a significant majority of websites are subject to suit at any time and are merely waiting for an enterprising crop of lawyers to start targeting them.

WHAT REALLY IS WINNING IN A WEB ACCESSIBILITY CASE?

According to Merriam-Webster, "win" means "to achieve victory in a fight, contest, game, etc.," or "to get (something) by effort." In 2011, actor Charlie Sheen famously gave the term "winning" a new meaning, when he had a public meltdown over a period of time while declaring himself "winning" in various situations. While he may have "won" on certain issues, many people differ on whether he truly "won." The reality is that winning has different meanings to different people, and "winning" in a business setting must be looked at holistically.

Approximately one in five people in the United States has a disability. Apart from the moral and sociological motives for a business's interest in inclusion, the population of persons with disabilities is a large demographic that should not be ignored. For e-commerce retailers that sell consumer goods, apparel and services, this market comprises an important class of consumers.

When evaluating how to "win" a web accessibility case, one must take into account the reputational damage that follows the loss of this significant segment of the population as buying consumers, versus the impact that can be made by practical improvements designed to increase inclusivity. While an e-commerce retail client could defend and defeat an ADA claim, the damage inflicted by social media and traditional media attacking a noncompliant website could far outweigh the "victory." Does a company really want to be known for proving it can legally discriminate? As such, when contemplating a "defense" of a web accessibility case, a business or organization must think beyond the legal maneuvers designed to "win" the case.

THE LEGAL DEFENSE

While web accessibility claims can be difficult to defend, they are not impossible to defeat legally. Defenses include standing, applicability, and even compliance, or mootness. With sufficient resources and effort, the legal claims can be overcome.

Web accessibility claims often are filed by serial litigants who allege that they tried to access the services on a website and encountered barriers to doing so. These suits can allege lack of proper alternative text for images, lack of proper labels for forms, failure to properly label link text, or links that are empty or meaningless. Claims also can include insufficient color contrast, illegible resized text and inadequate keyboard access. There may be video or audio files that are not captioned, or a general lack of other assistive technology interfaces to allow people with disabilities to interact with a website. Most of these technological failures can be addressed during the development or updating of a website.

Physical barriers common in ADA claims, such as curbs without curb cuts, parking lots without designated parking spots, or continuously unrepaired escalators or elevators, can be "seen" by the visionabled executive of a company. However, on a website, the vision-abled or hearing-abled executive often lacks the ability to recognize a barrier, and such obstacles go unmitigated.

The ADA offers an avenue for the disabled to compel a business to remediate an accessibility issue, and provides for the person with disabilities to recover the legal fees associated with such a claim. This often provides an incentive for businesses to agree to fix a problem quickly, rather than spend time trying to defend a claim that often results in a finding of a violation. Some states, such as California and New York, have relied on local legislation to influence a quicker response by providing for an award of damages in addition to an award of legal fees in the event a violation is found. But even in those cases, the potential for a large legal fee award, especially when confronted by a putative class action, is a significant factor in deterring a vigorous defense. Yet, some companies choose to fight.

Footnotes

1 https://profitworks.ca/blog/297-why-having-a-website-is-important.

2 https://seeresponse.com/blog/top-reasons-business-needs-website/.

3 https://darlic.com/business-website-importance/.

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Originally published by Intellectual Property & Technology Law Journal

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.