Avoiding ADA Website Compliance Lawsuits: Understanding Troll Litigation and Proactive Measures

Recently, several clients have asked us about ADA compliance risks for websites, and several news organizations have covered this topic. This Wall Street Journal article heightened the interest in ADA compliance and risks with increased demand letters. The risk of an ADA (Americans with Disabilities Act) compliance lawsuit against a website depends on several factors, and web accessibility lawsuits have been increasing in recent years. Here is a quick overview of what actions to consider, if any.

Fighting ADA Trolls With Compliance

An "ADA troll" is a term for individuals or law firms that aggressively pursue legal action against businesses for alleged ADA violations, particularly website accessibility issues, often seen as exploiting the law for financial gain rather than improving accessibility.

Common Characteristics of ADA Compliance Trolls:

• Filing Numerous Lawsuits: Often use boilerplate complaints against many businesses.
• Targeting Small Businesses: Small businesses are targeted as they are more likely to settle quickly to avoid costly litigation.
• Focusing on Technical Violations: Emphasize minor or technical issues rather than substantive barriers.
• Seeking Quick Settlements: Pressure businesses to settle quickly by threatening expensive litigation.
• Limited Involvement of People with Disabilities: May not actively involve individuals with disabilities who face genuine barriers.

The Risk of ADA Compliance Lawsuits

• Accessibility Standards: While no explicit regulations exist for private business websites under the ADA, courts require websites to be accessible. The Web Content Accessibility Guidelines (WCAG) are often used as a benchmark.
• Increased Legal Activity: The number of web accessibility lawsuits has significantly increased, with over 2,200 lawsuits filed in federal courts in 2018, nearly triple the number from 2017.
• High-Risk Industries: Retail, hospitality, hospitals, medical, and banking industries are frequent targets of accessibility lawsuits.
• Potential Consequences: Non-compliant websites may face legal costs, potential fines, and the cost of redesigning the website to meet accessibility standards.

Mitigating ADA Website Compliance Lawsuit Risks

Businesses should proactively assess and improve their website's accessibility by staying informed about accessibility guidelines and legal developments. The W3C establishes the current compliance standards. WCAG 2.1 is widely recognized as the industry standard for web accessibility and is often referenced in legal and regulatory contexts, such as the Americans with Disabilities Act (ADA) in the United States.

WCAG 2.1, or Web Content Accessibility Guidelines 2.1, is a set of recommendations and guidelines developed by the World Wide Web Consortium (W3C) to make web content more accessible to people with disabilities. WCAG 2.1 includes new success criteria to address better the needs of people with cognitive and learning disabilities, low vision, and motor impairments, among others.  WCAG 2.1 has three levels of conformance - WCAG 2.1 Level A (lowest), WCAG 2.1 Level AA (mid-range), and WCAG 2.1 Level AAA (highest). Most organizations aim to meet the WCAG 2.1 Level AA of conformance.

Being Proactive with ADA Compliance

ADA Trolls go after the easiest targets, often websites that have made little to no effort to achieve compliance. We have dealt with ADA compliance in the past, and we recommend an AI-supported tool that utilizes two applications that work together to remediate your website. The accessibility interface is responsible for the UI and design-related adjustments, while the AI-powered process handles the complex requirements - optimization for screen readers and keyboard navigation. With the interface, users can customize your website to their individual accessibility needs, making it WCAG 2.1 compliant.

In recent years, businesses have faced a surge in ADA website compliance lawsuits filed by plaintiffs alleging violations of the Americans with Disabilities Act (ADA). These lawsuits, often called "troll lawsuits," target companies for failing to meet accessibility guidelines on their physical premises or websites. Understanding how these ADA website compliance lawsuits operate and taking proactive measures can help businesses minimize the risk of being targeted.

Troll lawsuits exploit ambiguities in the ADA, claiming that individuals with disabilities are denied digital accessibility to a business's services due to non-compliance with accessibility standards. Plaintiffs do not need to prove actual harm; they merely need to allege they could not access the accommodation. For example, a person with a disability who finds a bathroom sink too low in a hotel or restaurant can file an ADA website compliance lawsuit based on this minor violation.

Companies often receive no prior notice before being served with a complaint initiating the lawsuit. The ambiguities in the ADA and the fact-intensive nature of such cases make it difficult for businesses to quickly resolve the matter. Plaintiffs are aware that companies face a dilemma: settle the case or incur significant attorney's fees to prove their innocence. This knowledge motivates plaintiffs to file numerous ada website compliance lawsuits, increasing the likelihood of receiving settlement amounts.

One notorious example of troll litigation involved an attorney from Arizona who filed nearly 2,000 cases in two years, targeting businesses for trivial violations such as slight variations in handicap accessibility sign heights. The Arizona Attorney General's office intervened, seeking the dismissal of over 1,000 cases and sanctions against the attorney. Although the court dismissed the lawsuits and granted sanctions in some cases, many businesses had already paid settlement fees to avoid the threat of ADA website compliance lawsuits.

Businesses should ensure compliance with the ADA website compliance Guidelines (updated in 2010) and the Web Content Accessibility Guidelines (WCAG 2.1) to minimize the risk of being targeted by ADA website compliance lawsuits. Conducting internal audits and addressing any major non-compliance issues is a crucial first step. Engaging professional architects, contractors, and IT firms can help businesses achieve full compliance with the necessary guidelines.

For physical barriers, companies should conduct audits using the ADA guidelines to confirm compliance. Potential litigants are more likely to pass over businesses that meet these requirements. To avoid ada website compliance lawsuits related to online presence, businesses can take the following steps:

1. Post an accessibility policy on the footer of the main website page.
2. Provide accessible alternatives, such as a staffed telephone line or online chat function.
3. Regularly conduct a compliance audit on primary webpages using various screen readers, operating software, screen reader software and hardware.
4. Designate an accessibility coordinator within the organization.

By understanding the tactics of troll litigation and taking proactive measures to ensure compliance with digital accessibility guidelines, businesses can significantly reduce the risk of becoming targets of ada website compliance lawsuits. Investing in compliance not only protects companies from legal action but also demonstrates a commitment to providing equal access to individuals with disabilities.

What You Can Do

Here are some examples of successful compliance strategies that small businesses can implement to minimize the risk of ADA website compliance lawsuits:

1. Conduct a comprehensive accessibility audit: Small businesses should engage an accessibility expert or use online tools to perform a thorough audit of their website and physical premises. This audit will identify any areas of non-compliance with the ADA Accessibility Guidelines and Web Content Accessibility Guidelines (WCAG). By addressing these issues proactively, small businesses can reduce the likelihood of being targeted by ada website compliance lawsuits.
2. Develop an accessibility statement: Small businesses should create an accessibility statement that outlines their commitment to providing equal access to individuals with disabilities. This statement should be prominently displayed on the company's website and include contact information for users to report any accessibility issues they encounter. Having a clear accessibility statement demonstrates a proactive approach to compliance and can deter potential plaintiffs from filing ADA website compliance lawsuits.
3. Implement accessible design practices: Small businesses should prioritize accessible design when developing or updating their website. This includes using clear, descriptive headings, providing alternative text for images, ensuring adequate color contrast, and making sure the website is navigable using a keyboard. By following the WCAG guidelines and incorporating accessible design practices, small businesses can create a more inclusive online presence and reduce the risk of ADA website compliance lawsuits. In some cases, the addition of assistive technologies can mitigate ADA compliance gaps.
4. Provide accessibility training for employees: Small businesses should educate their employees about accessibility guidelines and best practices. This training should cover topics such as assisting customers with disabilities, understanding the importance of accessibility, and identifying potential barriers. By fostering a culture of awareness and inclusivity, small businesses can better serve their customers and minimize the risk of ADA website compliance lawsuits.
5. Establish a process for handling accessibility complaints: Small businesses should have a clear process in place for receiving and addressing accessibility complaints from customers. This process should include designating a specific point of contact, such as an accessibility coordinator, to handle these complaints promptly and professionally. By demonstrating a commitment to resolving accessibility issues, small businesses can build goodwill with their customers and reduce the likelihood of ADA website compliance lawsuits.
6. Regularly review and update accessibility measures: Small businesses should treat accessibility as an ongoing process rather than a one-time fix. Regular reviews of the company's website and physical premises can help identify any new barriers or areas of non-compliance. By staying up-to-date with the latest accessibility guidelines and technologies, small businesses can maintain a high level of compliance and minimize the risk of ADA website compliance lawsuits.

By implementing these successful compliance strategies, small businesses can proactively address accessibility issues, provide equal access to individuals with disabilities, and reduce the risk of being targeted by costly and time-consuming ADA website compliance lawsuits. Investing in ADA-compliant websites not only protects businesses from legal action but also demonstrates a commitment to inclusivity and customer service. Businesses that can demonstrate a commitment to digital accessibility, improve the user experience for all visitors and reduce the likelihood of facing ADA lawsuits. However, it's essential to approach accessibility as an ongoing process rather than a one-time fix, as technologies, standards, and user needs continue to evolve over time.

Additional Resources ON ADA Compliance and WCAG 2.1:

Law firm suing thousands of businesses over website accessibility – Are you a target?

WCAG 2 Overview

WCAG 101: Understanding the Web Content Accessibility Guidelines