2021 is shaping up to be the year with the most lawsuits filed based on the ADA ever. Inadequate online accessibility has become more glaring and the thresholds of tolerance are much lower. Predictions indicate that plaintiffs will file more than 4,000 lawsuits by the end of the year.
In 2020, the total number filed was 3,500, which was already high compared to the 2,900 cases filed in 2019 or 2,300 in 2018. Web accessibility cases are fueling the rising number of complaints and forcing businesses to reflect on what it means to make a company accessible in the digital era.
Why Businesses Must Take Note
The ADA was established in 1990 to place strict accessibility standards on employers, the government and businesses, with costly legal consequences for those who fail to adhere.
Yet, the lack of clarity is pronounced in the virtual spaces that have become increasingly vital to consumers over the 31 years since the ADA’s passage.
Customer Accessibility & Reasonable Modifications
Business professionals often consider Title I of the ADA when it comes to accommodating employees, but Title III calls out obligations to customer accessibility that companies cannot disregard. Access ramps, reserved parking spots and bathrooms designed for people with disabilities are just a few examples of accommodations that the ADA mandates.
Businesses will often need to undergo professional assessments to ensure that they do not unwittingly violate the law. It is important to note that the ADA requires “readily achievable accommodations” and that appropriate fixes might vary depending on the circumstances.
Accessibility in Virtual Spaces is Vital, But Regulations are Vague
Individuals are increasingly making purchases, ordering food, booking reservations and otherwise engaging with businesses online. Company leaders must consider their online accommodations to identify shortcomings.
Robles v. Dominos Pizza is a recent example of a lawsuit filed because of an inaccessible website. In that case, Robles, a Blind man, could not use the company’s website or mobile app to place an order because they lacked audio descriptions. The 9th Circuit Court of Appeals sided with the plaintiff, indicating that failure to adhere to the ADA online is a violation of the law.
A separate case, Gil v. Winn-Dixie, resulted in a different conclusion with the 11th Circuit Court of Appeals siding with the defendant. Nuanced distinctions in the facts of these cases might help explain the disparity, but the differing results also illustrate the uncertainty surrounding ADA requirements online. The issue is not surprising. After all, the Internet wasn’t yet available to the public when the US enacted the ADA.
Now, in the first half of 2021, e-commerce companies accounted for 74% of Federal ADA cases filed. The steady rise in ADA lawsuits related to online accessibility should give business leaders pause, especially considering what’s at stake.
The Extreme Costs of Title III ADA Lawsuits
Some individuals file dozens or even hundreds of lawsuits under the ADA, earning an unflattering reputation as serial plaintiffs. However, courts have occasionally found that these proactive litigants are taking necessary steps to enforce the statute. It is vital to understand that this is a civil rights issue. The lack of accommodations impacts millions of Americans with disabilities every day.
For small businesses, these cases are often devastating and sometimes ruinous. If the court finds in favor of the plaintiff, the business is on the hook for court costs and attorneys fees– not just damages to the plaintiff.
The defendant’s cost of an ADA-related lawsuit will run in the tens of thousands or more, even in smaller cases.
Protecting Businesses from ADA Exposure
Adherence to the ADA is often more complicated than it looks. Taking the time to consider appropriate accommodations is worthwhile. After all, creating an accessible space- either in person or virtually, will mean that a business can serve a broader range of customers.
Regarding online accessibility, the World Wide Web Consortium (W3) created Web Content Accessibility Guidelines (WCAG). Top corporations and universities use WCAG for their compliance standards, making it a reliable resource with plenty of credibility.
Businesses can review the WCAG to address web accessibility, including necessary standard accommodations, such as audio descriptions and captioning for online content. As technology increasingly makes these accessibility tools more attainable and cost-effective, courts will have less sympathy for defendants who neglect to offer them.
Shifting the Perspective from Lawsuit Avoidance to ‘Good for Business’
Avoiding ADA complaints is important, especially for companies that are not equipped to absorb the expense of a Federal lawsuit. However, business leaders can also benefit greatly by building their customer base and growing loyalty among communities of individuals with disabilities and others who can benefit from greater accessibility. Captioning is a strong example of an accessibility tool that is easy to implement and can help the Deaf and hard-of-hearing community access online content effectively. These accessibility-focused tools also help non-native English speakers, people viewing videos on public transportation and even new mothers trying not to wake their babies.
Offering accommodations should not be viewed as a series of hoops to jump through to avoid litigation. Instead, providing access helps business leaders and marketers reach the widest possible audience. Businesses releasing content, website and messaging that includes everyone will benefit.
Verbit offers captioning, transcription and audio description solutions for businesses, schools, government entities and more to utilize to avoid unnecessary lawsuits. For further information about how Verbit’s technology can improve online accessibility, reach out to Verbit today.