Reducing Digital Accessibility Litigation Risk
Let’s talk about something every business owner, developer, and content creator should (but usually doesn’t) have at the forefront of their mind—disabled customers and accessibility. Specifically, how to avoid getting hit with a lawsuit because your website, app, or product is inaccessible. Accessibility isn’t just a buzzword; it’s a legal requirement, and more importantly, it’s the right thing to do. But if your organization doesn’t buy into the “right thing to do” argument, make things accessible so you avoid the financial and reputational damage of a lawsuit. Here are some key strategies to keep your organization on the right side of the law.
1. Never Intentionally Make Something Inaccessible Public
The quickest way to find yourself in a courtroom or needlessly incurring a financial penalty is to knowingly produce something that is inaccessible. You might think, “No one will notice,” “It’s too expensive to fix right now,” or “We don’t want to slow up the release, we will do it later.” Guess what? People do notice, and lawsuits are the most expensive and ineffective way to learn about accessibility.
Think of it this way: if you were aware that your office building’s elevator was out of order, and you ignored that despite knowing people in wheelchairs couldn’t access the upper floors, your organization would be in big trouble. The same principle applies to digital accessibility. If you know your website isn’t accessible and deliberately choose to do nothing about it, you’re acting willfully—and that’s a huge liability. Accessibility is a little bit like speeding. Everyone thinks it’s OK to break the law. Because they haven’t gotten caught in the past, it increases drivers’ confidence that they won’t be caught in the future. However, the reality is that just because your organization hasn’t been called out before over inaccessibility doesn’t mean it will continue to indefinitely get away with that.
The best way to avoid ending up with a demand letter, which is the typical precursor to litigation, is to prioritize accessibility from day one. Incorporate it into your design and development processes, and don’t cut corners. Remember, accessibility isn’t just a checkbox to tick off; it’s an ongoing commitment to inclusivity. If you don’t know where to start, hire an expert. Ignorance isn’t a defense, and pretending the problem doesn’t exist won’t make it go away.
This number one rule of avoiding accessibility litigation is especially true if your organization is in one of the areas that is being targeted by plaintiffs’ law firms. more than ¾ of accessibility lawsuits are against e-commerce organizations. This is due to their frequent updates and complicated checkout mechanisms. Denying someone access to an e-commerce platform instantly increases a plaintiff’s costs because they now have to get someone to take them somewhere to buy something. Or, the plaintiff might not be obtain what they are shopping for on the inaccessible website at all. Therefore, plaintiffs’ law firms don’t have to look to hard to find actual damages, something that is essential to all lawsuits.
2. Don’t think that installing an overlay is going to eliminate accessibility litigation risk
If anything, installing an overlay might increase accessibility litigation risk. From January to June of 2024, more than 500 lawsuits were filed against companies using overlays. That represents about 25 % of digital accessibility lawsuits.
3. Keep Up to Date on Accessibility Laws and Standards
Accessibility laws and standards are not static—they evolve. What was considered acceptable a few years ago won’t cut it today. Staying current on accessibility laws and standards is crucial to avoid legal trouble. Moreover, you need to keep up the laws not only where your organization is based, but every state and country where customers are located.
In the U.S., the Americans with Disabilities Act (ADA) is the primary law governing disabled access. But that’s not the only law you need to worry about. Section 508 of the Rehabilitation Act, and various state laws like the California Unruh Act also come into play. If you’re operating internationally, you’ll need to consider laws like the Accessibility for Ontarians with Disabilities Act (AODA) in Canada or the EU’s European Accessibility Act.
The legal landscape is complicated, and it’s easy to fall behind. One way to stay informed is by subscribing to newsletters from reputable accessibility organizations or legal firms specializing in disability rights. Lainey Feingold and Seyfarth Shaw are two good resources. Attend webinars, read blogs, and consult with legal experts to ensure you’re always in the loop. Ignorance of the law isn’t a valid excuse, and claiming you didn’t know about a new regulation won’t hold up in court.
4. Conduct Regular Automated Audits
Automated audits are a lifesaver that can identify accessibility issues before they become legal liabilities. Tools like aXe, WAVE, and Lighthouse can scan your website or application for common accessibility issues, giving you a snapshot of where you stand. The twenty or so law firms whose entire business practice is made up of serially suing companies over accessibility problems use these tools and crawl the internet looking for soft targets. Don’t make it easy for them.
Recognize that automated tools aren’t perfect. They catch many accessibility problems, but only about 35 % of the total WCAG success criteria that must be met. That’s why automated audits should be part of a broader accessibility strategy that includes manual testing and user feedback. Automated audits are the first line of defense, not the only line. However, they will help you catch some regressions prior to pushing code to production.
Set a regular schedule for these audits. If your website has a content management system that regularly updates production without rolling out code, you must test both in your staging and production environments. Depending on the size and complexity of your digital properties, you might need to run these tests frequently. The key is consistency. The more often you audit, the sooner you can catch and fix issues, reducing the risk of a lawsuit.
5. Train Management and Staff
Your management team and staff are your frontline defense against accessibility issues, so they must understand the importance of accessibility and know how to implement it. This isn’t just about training your developers to code accessible websites—although that’s important. It’s about creating a culture of accessibility throughout your entire organization.
Start with your leadership team. If they don’t understand or care about accessibility, they aren’t going to make a lot of money available. Staff cares about what leaders care about. Conduct regular training sessions to ensure everyone understands best practices and legal requirements. Make sure your HR department is well-versed in accessibility laws and knows how to accommodate employees with disabilities.
Don’t stop there.
Educate your customer service team on how to interact with people with disabilities.
Require your content creators to write plain language copy and use alt text for images that convey information not included in the text.
Coach your designers on color contrast, font sizes, responsive breakpoints, and other critical elements of accessibility.
Everyone in your organization should have at least a basic understanding of accessibility regarding their role and why it matters.
And remember, training isn’t a one-and-done deal. As accessibility standards, laws, and best practices evolve, so should your training programs. Regularly update your training materials and consider bringing in external experts to conduct workshops or seminars.
6. Keep Good Records
If you face a lawsuit, having good records can make a big difference in the outcome. Documentation can prove that you’ve been making a good-faith effort to comply with accessibility laws and standards, which could potentially reduce your liability.
Start by documenting your accessibility policy. This should outline your commitment to accessibility, the steps you’re taking to achieve it, and the standards you’re adhering to. Keep records of all your audits, including the issues identified and the steps you took to fix them. Document your training sessions—who attended, what was covered, and when they were held.
Keep records of any accessibility complaints you receive and how you handle them. Did someone report an issue with your website? Document the report, your response, and the timeline for fixing the issue. This shows that you’re responsive and proactive about accessibility.
If you’re working with external vendors or contractors, include accessibility in your agreements. Trust, but verify – the State of California paid out a 7 figure amount of money in a settlement agreement after they didn’t hold a vendor accountable for not meeting the agreed-to accessibility standard in its contract. Keep records of vendor communications with them. Your organization does not want to be held liable for a vendor's inaccessibility.
Conclusion
Accessibility isn’t just a legal obligation—it’s a moral one. Failing to prioritize accessibility puts you at risk of lawsuits, but more importantly, it excludes people with disabilities from participating fully in society. Inaccessibility is not a victimless crime, but the victims usually stay silent. By never willfully producing something you know is inaccessible, avoiding overlays, staying up to date on laws and standards, conducting regular audits, training your staff, and keeping good records, you can reduce your risk of legal trouble and do the right thing.
In the end, accessibility is about inclusion. It’s about recognizing that everyone deserves equal access to information, services, and opportunities regardless of their abilities. When an organization commits to accessibility, it is protecting itself from lawsuits while also making the world a better, more inclusive place for everyone.
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