- Accessibility issues with your website may create a legal vulnerability.
- A predatory attorney can run an audit that shows accessibilty issues, then send a letter threatening a lawsuit (likely hoping for an out of court settlement).
- Accessibility strategies can be approached through several different orientations:
- Legal vulnerability (where we focus on what is necessary to minimize legal exposure).
- Maximum accessibility (where we focus on making the site as accessible to people with disabilities as possible, a higher bar)
- A third orientation might be viewing the challenge in terms of meeting the requirements of another agency, such as the state government (where we meet a specific set of requirements defined by the agency).
- Run an audit of your website to detect accessibility issues.
- Fix the issues that are quick and easy to fix.
- Formulate an action plan for remediating issues that are not quick and easy to fix.
- Add an accessibility statement to your website.
- Provide training to all individuals who will be adding or editing content on the website.
- Talk to your insurance agent about liability insurance.
- Run periodic audits to check for new issues.
Website owners have legal exposure due to accessibility of their websites.
Who is Liable?
As with all legal issues, please consult your legal counsel if possible to determine your obligations under the law. As non-lawyers, here’s what we can surmise regarding determining who is required by law to meet accessibility requirements:
Title III “Businesses that are open to the public”
On March 18, 2022, the DOJ released this guidance on web accessibility under the ADA. In that guidance, they indicate that all “business that are open to the public” are required to comply under Title III of the ADA guidelines.
⇒ Please ascertain whether your business falls under the categories set forth in Title III. See https://www.ada.gov/topics/title-iii/
We have heard the opinion that the emphasis may be on businesses with brick-and-mortar presences. Anecdotally, we are aware of this 2019 New York Times article on art galleries in New York being sued and are personally aware of several restaurants being sued.
California AB 434
In addition to the DOJ guidance above, the State of California’s AB 434 requires all state entities, plus “any contractors working for them” to be compliant with “Web Content Accessibility Guideline (WCAG) 2.1 Level AA Standards in addition to the requirements of Section 508 (29 U.S.C. 794d).” See https://webstandards.ca.gov/Accessibility/
In addition to AB 434, there is a bill in the California Assembly that would extend the law to all websites and apps that can be accessed from California. While there is criticism that the law is poorly written and will not pass as-is, we feel it’s worth noting that it indicates a possible sea change that could make all website owners liable whether or not they fit under ADA Title III or are a contractor of a state entity. See: https://www.adatitleiii.com/2023/06/new-california-assembly-bill-on-website-accessibility-could-result-in-a-lawsuit-tsunami/
Lake WebWorks cannot provide legal advice. However, what follows is what we have gathered in years of watching the evolution of this issue:
One of our clients who is a legal firm in the Bay Area specializing in business law recommended that website owners procure liability insurance to cover website accessibility issues, just as a building owner would procure insurance to guard against lawsuits from people slipping on the stairs or sidewalk.
⇒ Please reach out to your insurance agent to find out what kind of coverage is available. However, in our experience, not all insurance agents are aware or up-to-speed, as this is a fast-evolving area of liability, so if you’re existing agent is unaware, it may be worthwhile to ask around.
Due to the fact that even after the most stringent remediation efforts, there will likely be detectable issues remaining that an attorney might flag and use as a basis for threatening a lawsuit, we believe that having an insurance policy is vitally important.
In a perfect world, website owners would have their developers remediate all detectable accessibility issues. While this is highly recommended (see our detailed recommendations below), the cost will vary on the size and complexity of your site, and on how it was built. Additionally, there may be issues that are not easy or possible to remediate due to the reasons noted below:
One common scenario is that a website has been built on a content management framework (such as WordPress), utilizes a theme developed by a third party, and utilizes various plugins (software developed by third parties that is “plugged in” to the content management system to extend functionality). There may be accessibility issues in the code of any or all of these; sometimes they can be overridden or modified, and sometimes not.
It’s worth noting that in the settlement agreements we have seen from website owners who have been sued, the settlement agreement waives the requirement to remediate code generated by third parties. Similarly, in a recent meeting we had with a state agency regarding AB 434 compliance, they indicated informally that some issues are not fixable.
We feel it’s best practice at a minimum to a) detect these issues via an audit and b) describe their cause, so that if brought up in the future, we can say exactly why we couldn’t or didn’t fix that particular issue.
Websites often have PDF files, videos, and/or other media that must also be accessible, but are often provided by third parties or produced by staff who are unaware of accessibility requirements and how to meet them. An additional challenge is that the source documents that were used to produce PDFs may not be available. While it would be ideal to have staff trained to produce accessible documents, it may be necessary to have documents remediated by a company who specializes in document remediation (we can make a referral). It’s worth noting that we know a website owner who received a threatening letter from an attorney citing only a single inaccessible PDF catering menu they had posted on their site!
We recommend that regardless of the state of your site, that you add an accessibility statement which communicates to the public that you are a) aware of the issue, b) working on it, and c) are providing recourse for anyone who encounters in accessible content with recourse, usually in the for of someone to call or email.
The W3C, the body who develops the WCAG accessibility guidelines, provides guidance on developing an accessibility statement, and a tool to generate the statement. If your site currently has issues, we can say that the site is “partially conformant” and provide the recourse described above, then update the statement as remediation is performed.
If you have staff who are adding or editing content on the website, it is critical that they receive training on basic accessibility best practices. This training is most effective if they have a fundamental knowledge of HTML (see recommendations below).
Websites are continually changing, whether due to content being added, and/or software updates. For that reason, it’s important to audit your site periodically to see if any accessibility issues have crept in.
Be Ready to Respond
Even after going through all of the above, it’s likely that a predatory attorney will still be able to scan your site with accessibility auditing software (of which there are many), and show existing issues. Our sense is that when they send a letter warning you of their intention to sue, that they are bargaining that you will opt to settle out of court, and they likely don’t want to go to trial any more than you do. If that’s indeed the case, a well-crafted response may be effective. If we audit your site, fix what we can, prepare a report, have a plan in place, and post an accessibility statement, we believe that we have provided you with all the raw materials necessary to put into a response that will let them know that you have done your due diligence. But as in all legal matters, we recommend that you have counsel that you can rely on to form the strongest possible response.
A Word About Overlays
“Overlays” are third-party tools that may be added to a website to provide tools to assist users with disabilities, and in some cases also provide an AI component that attempts to adjust accessibility issues in the web browser as the page is being requested. Popular overlays include AccessiBe (https://accessibe.com), UserWay (https://userway.org), and EqualWeb (https://www.equalweb.com).
As web developers, we have mixed feelings about overlays. On one hand, they seem to offer a (relatively) low-cost, easy-to-implement solution. Reps for these products will argue that predatory attorneys seeing them on a site will move on to lower-hanging fruit, and some even include services to help you respond to any letters from attorneys that you might receive.
That said, overlays have been heavily criticized (see https://overlayfalseclaims.com and https://www.youtube.com/live/k6VmSjEIiks?si=_t9kdiUUW4aDjiwh), and have received some very bad press (see https://www.forbes.com/sites/gusalexiou/2021/06/26/largest-us-blind-advocacy-group-bans-web-accessibility-overlay-giant-accessibe/?sh=7df656365a15 and https://www.wired.com/story/company-tapped-ai-website-landed-court).
For the above reasons, we see overlays as a temporary measure at-best, and do not advise that website owners rely on them exclusively while failing to implement the actions recommended below. That said, we know of one website owner who said, “I’ll pay AccessiBe fifty bucks a month, and if I get sued I’ll sue them.”
1) Have us run an audit of your website to detect accessibility issues.
The audit itself is quick and easy to run. The report it returns will read like greek, but will tell you how many Level A, Level AA, and Level AAA issues were detected.
2) Have us fix the issues that are quick and easy to fix.
Using the initial audit as a guide, we can go through and fix the issues which are quick and easy to remediate.
3) Have us prepare a report and run a follow up audit.
As part of our report, we’ll diagnose the issues from the initial audit that were not quick-and-easy fixes, and make notes on each one, to include the cause of the issue, as far as we can ascertain it, and what we think it will take to fix it. This will give us the knowledge we need to estimate what it will take to get the site to as high a level of compliance as possible.
The follow up audit will demonstrate the progress we’ve made after the first round of fixes, and serve as a document that shows that you are both cognizant of accessibility issues and actively working to address them.
4) Have us develop and post an accessibility statement to your website.
We’ll develop the accessibility statement along the guidelines provided by the W3C. This statement will also put you on record as being aware, actively working toward compliance, and will provide a point of contact for individuals who encounter accessibility barriers on your site.
5) Have us formulate an action plan for remediating issues that are not quick and easy to fix.
Based on what we learned during the diagnosis of the initial audit, we can now work with you to develop an action plan that respects your budget and brings you closer to your compliance goals.
6) Have us train everyone who adds or edits content on your website to maintain accessibility.
If you have staff that adds or edits content on your website, that action plan will necessarily involve training. We can provide that training, and by having your staff complete a short HTML tutorial and participate in our initial two hour training, you’ll be giving them what they need to avoid the most common errors that get made adding or editing web content.
7) Talk to your insurance agent about liability insurance.
Because perfect, 100% compliance is extremely rare, even with all the measures taken above, it’s likely that a predatory attorney will still be able to run an audit that displays some issues, and use that as a basis on which they’ll threaten a lawsuit. Liability insurance may help to minimize your legal exposure.
8) Have us run periodic audits to check for new issues.
Your website is likely to change as software updates are installed and as new content is added to your site. We recommend running an audit on monthly or quarterly basis to check for issues that may have crept in inadvertently. This regular auditing also demonstrates your good faith and intent to keep your website as accessible as possible.
Maintaining web accessibility is a challenge, and requires time and resources, but in the evolving legal landscape, is becoming a necessity.
If you have any questions on the above, please feel free to get in touch with Lake WebWorks to schedule a consultation. We can discuss your individual needs and quickly get a proposal together to begin addressing your site’s issues.