Written November 16, 2020
Online sales have skyrocketed and it’s expected that they will continue to be the "new normal" after the pandemic. Additionally, lawsuits over website accessibility have become much more prevalent, jumping from 815 suits filed in 2017 to around 3000 in 2019. Here’s what you need to know about website accessibility compliance to make sure your company doesn’t become involved in expensive litigation.
Assistive technologies for disabled users, such as screen readers, only work if the underlying website is compatible. (It’s a lot of little lines of code, like making sure all of your images have descriptive tags). Courts have held that it is the company’s responsibility to ensure, not only that their website is compatible with assistive technologies, but that it is "robust enough to provide equally perceivable, operable, and understandable access to all consumers."
There are three laws that address website accessibility:
The Americans with Disabilities Act ("ADA"), which was the first law interpreted to require website accessibility in 1996;
The Unruh Act, which requires website accessibility if you conduct business in the state of California; and
Most compliance litigation is based upon the ADA and there is a bill pending in Congress, the Online Accessibility Act, to curb this litigation as many lawsuits are thought to be predatory. Because there are no federal accessibility standards, the question of whether a website is "accessible" often presents factual issues that preclude dismissal early on in a case. When faced with the relatively low cost of early settlement or the uncertainty of litigation, most businesses settle. This has led to a flood of predatory lawsuits in three plaintiff-friendly jurisdictions.
California has taken matters into its own hands and set forth standards for compliance in the CCPA. Companies complying with the industry-standard Web Content Accessibility Guidelines (WCAG) can rest assured that they will be found compliant and not entangled in litigation. The CCPA has only been effective as of 2020, and its jurisdictional reach only clear as of October, so it will be interesting to see if it too is the basis of predatory suits.
There are many companies that specialize in accessibility compliance and offer ongoing audits so you remain compliant. We’ll leave the recommendations to the tech-experts, but our two cents: find a company that’s familiar with your industry and cognizant of overall site performance.
Because D.I.Y. won’t C.Y.A.
2100 Geng Rd, Suite 210
Palo Alto, CA 94303
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New York, NY 10016
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