Wayfair, one of the internet’s leading home goods and furniture retailers, was hit with another class action lawsuit in June. The lawsuit alleged that the company’s website was not accessible to legally blind customers.

In this legal action, Seana Cromitie, a visually impaired woman, claimed that she encountered accessibility issues while attempting to purchase a shoe rack from Wayfair’s website. These issues, she argued, denied her the same level of access to Wayfair’s online products, content, and services as sighted customers.

Cromitie’s lawsuit is part of a growing wave of web accessibility litigation filed under the Americans with Disabilities Act (ADA). But what can business owners learn from Wayfair’s recent allegations and the dangers of ignoring web accessibility?

Below, we’ll discuss the plaintiff’s claims, providing tips for avoiding and responding to ADA demands. 

The Americans with Disabilities Act

The Americans with Disabilities Act (ADA) is a civil law designed to protect the rights of people with disabilities in all areas of public life. While it doesn’t specifically mention websites, the courts have made it clear that the ADA applies to websites, whether they’re owned by government agencies or private businesses.

In July 2023, the Department of Justice (DOJ) suggested a new rule to ensure that online services provided by state and local governments become more accessible under Title II of the ADA. Although Title III, pertaining to privately owned businesses, has yet to see changes, the DOJ published guidance in 2022 confirming its position that the ADA does apply to websites, stating:

“…the Department has consistently taken the position that the ADA’s requirements apply to all the goods, services, privileges, or activities offered by public accommodations, including those offered on the web.”– US Department of Justice | Guidance on Web Accessibility and the ADA (2022)

– US Department of Justice | Guidance on Web Accessibility and the ADA (2022)

Failure to do so can result in legal action, as Wayfair’s recent case demonstrates. But what are the legal standards for ADA compliance?

For an in-depth look at the proposed changes to Title II of the ADA, check out our article “The ADA’s New Shift Towards Web Accessibility”

Title III and WCAG

Due to the DOJ’s delay in releasing technical standards for web accessibility, confusion has emerged among businesses and website owners about what is required for ADA compliance. 

As a result, the DOJ often refers to the Web Content Accessibility Guidelines (WCAG) as the standard for ADA web compliance. The DOJ has even joined lawsuits against businesses and organizations that have failed to meet the WCAG standards.

However, Title III of the ADA has no legal standard for web accessibility— even achieving WCAG 2.1 AA conformance does not fully protect you from lawsuits. 

So, how can businesses close the door to potential litigation? Let’s take another look at Wayfair’s June court case.

Background to the Wayfair’s 2023 ADA Case

The plaintiff, Seana Cromitie, asserts that Wayfair’s website falls under the definition of a public accommodation in Title III of the ADA. Therefore, it is considered discriminatory and illegal to deny people with disabilities access to the same products and services offered to others.

The 2023 court case centers on issues that made Wayfair’s website challenging for screen reader users. Screen readers are essential tools for users with visual impairments, as they provide an auditory interpretation of the website’s content. However, Wayfair’s website lacked the necessary features to accommodate these users.

Wayfair’s Web Accessibility Barriers

The class action complaint cites several specific issues with Wayfair’s website. These key issues include:

• Missing alternative text (or alt text): Alt text is vital for users to understand what an image looks like and its function on a website. Wayfair’s website had numerous images without meaningful alt-text, making them incomprehensible to visually impaired visitors.
• Incorrectly Formatted Lists: Screen readers rely on well-structured lists for proper navigation. When the lists aren’t correctly formatted, the screen readers might read items in the wrong order or convey the list incorrectly, making it challenging for users to understand the content and move around the site.
• Unannounced Pop-ups: Pop-up windows on the website without proper announcements caused confusion for screen reader users, hindering their navigation and comprehension.
• Broken and “empty” hyperlinks: Broken links can disrupt the user’s experience by not explaining where the link or image will lead. This can frustrate users and make accessing various parts of the website challenging.
• Missing Keyboard Navigations:  Requiring a mouse for specific actions creates barriers for people with motor impairments or those who rely on keyboards or other assistive tools.

Unfortunately, these barriers are widespread, leaving millions of businesses unknowingly open to frivolous lawsuits. 

Common Web Accessibility Barriers

In their annual analysis of the top 1 million website home pages, WebAIM (Web Accessibility In Mind) found that 96.3% of home pages had detectable failures of WCAG. 

According to their finding, many of the same barriers cited in Wayfair’s case appear in their top WCAG 2 failures, including 58.2% of homepages missing alt text for images, while 50.1% had empty links. However, both of these barriers can take seconds to remove. 

Suppose businesses recognize their mistakes early and make immediate changes. In that case, the cost to correct these barriers won’t accumulate or cost as much later. Remediating thousands of issues on an e-commerce website will require a substantial investment while building for accessibility will cost much less over time.

No Business is Too Small

While Wayfair is a major retailer, small businesses are also covered by Title III of the ADA. They are responsible for providing web content that works for all users, regardless of their abilities. 

In fact, smaller companies with revenues under $25 million have been frequent targets. They accounted for 77% of ADA non-compliance cases in the first half of 2023, and many plaintiffs allege the same issues cited in the Wayfair class action case. 

So, what steps can your website take to ensure ADA compliance?

A Step Towards Web Accessibility

Making sure your website is web-accessible is not only a legal requirement but also a moral and business imperative. This may involve working with web accessibility experts to conduct an audit and any necessary changes.

Here are some steps you can take to improve your web accessibility:

1. Conduct a web accessibility audit: Conduct a comprehensive web accessibility audit to identify all web accessibility barriers.
2. Make a plan:  Familiarize yourself with WCAG’s guidelines and work to meet or exceed their standards. Address the issues identified in the audit, prioritizing the most critical issues first.
3. Consider a dedicated accessibility team: Partner with an accessibility team to oversee ongoing web accessibility efforts and ensure compliance with ADA requirements.
4. Train and Education: Educate staff on WCAG best practices and how to maintain accessibility standards moving forward.
5. Regular Monitoring: Continuously monitor your website for accessibility issues and address them promptly.
6. Stay up-to-date: Stay informed about ADA web accessibility requirements and update websites and apps as needed.

Start Your Journey to ADA Compliance

The recent lawsuit against Wayfair is a stark reminder of the importance of web accessibility under the Americans with Disabilities Act (ADA). It’s not just a legal requirement; it’s a moral and business imperative—no matter the size of your business, accessibility matters. The case of Wayfair demonstrates the very real risks of ignoring web accessibility and the potential for costly legal action.

Whether you want to protect against a frivolous ADA accessibility lawsuit or become WCAG 2.1 AA compliant, 216digital has you covered. After years of analyzing ADA lawsuits, we’ve discerned the tactics used by law firms to pinpoint websites for groundless ADA claims and how to protect businesses against them. Our team of accessibility experts can also develop strategies to integrate WCAG 2.1 compliance into your development roadmap on your terms. 

Don’t wait for a lawsuit to push you into action. Schedule a Complimentary ADA Strategy Briefing with 216digital to take the first step towards website accessibility.

Web accessibility has increasingly become a focal point for online businesses in recent years. In the digital era, the importance of making sure every user has access to web content cannot be overstated. But what happens when this rightful concern becomes a potential legal pitfall for businesses? 

A recent wave of demand letters related to web accessibility has left many business owners questioning their source. Are they from genuine concerned human plaintiffs, or are bots behind them?

What are Web Accessibility Demand Letters?

For those unfamiliar, a web accessibility demand letter is a legal notice sent to businesses alleging that their website is inaccessible according to the standards set by the Americans with Disabilities Act (ADA). If true, these businesses must take specific actions to become compliant or face potential legal action. This can not only dent their reputation but also incur substantial legal fees.

The number of businesses receiving these letters has increased exponentially in recent years. In 2022, more than 1,500 demand letters were sent per week. While many of these lawsuits are initiated by people with disabilities, many have questioned whether these letters are starting to come from bots. 

The Wave of Demand Letters

Ogletree Deakins, a reputable legal firm, has recently noticed some unusual patterns in the series of web accessibility demand letters received by their clients. The consistency in the phrasing, formatting, and even the nature of the complaints has led them to question if these are genuinely from diverse plaintiffs or if there’s a more automated process at play.

According to Ogletree Deakins, bots may use artificial intelligence (A.I.) to scan websites for potential violations of the ADA quickly. This could allow plaintiffs to pursue hundreds of ADA claims at once, pressuring businesses to settle those claims before they lead to litigation.

What are Automated Tools?

Automated accessibility audits are tools designed to test websites for compliance with ADA guidelines. These tools can scan hundreds of web pages quickly to identify potential violations. Could plaintiffs use these tools to test large numbers of websites for ADA violations? The answer is yes, and here’s how.

Automated tools are efficient at identifying general issues with web accessibility, such as missing alt text for images, incorrect use of headings, or other standard HTML violations. While these tools might not catch every nuance of a site’s accessibility, they can provide a quick overview, potentially leading to web accessibility demand letters.

For more information about automated tools, check out our blog post, Are Web Accessibility Testing Tools Enough to Ensure Compliance. 

The Problem with Bots Using Automated Tools

While it is conceivable that a plaintiff could use an automated tool to test websites for ADA violations, there is one major issue. Automated tools have substantial limitations. 

Even the best-automated tools are prone to false positives. For example, an automated test could identify missing alt text for images. However, not all images are required to have alt text. Humans often must determine whether alt text is necessary, and A.I. is currently incapable of making those decisions. 

Automated tools are a valuable part of thorough accessibility remediation. Their limitations could make them a poor tool for filing massive waves of lawsuits, exposing potential law firms to penalties for filing fraudulent claims.

However, this also brings into question whether a person with no intention to use a business’s products or services can file an ADA non-compliance lawsuit.

The Concept of a “Tester”

There have been instances where individuals, referred to as “testers“, detect ADA violations even when they have no real intention of using a business’s products or services. A prominent example is the case of Acheson Hotels, LLC v. Deborah Laufer, where the legitimacy of the plaintiff’s intent came into question. 

The U.S. Supreme Court will likely weigh in on that question in the coming months. Depending on the outcome of that case, the prospect of bots generating demand letters doesn’t seem far-fetched.

But what could this mean for website owners?

What Does This Mean for Website Owners?

For online business owners, the implications are significant. If your website isn’t ADA compliant, the risk isn’t just alienating potential customers but also facing potential litigation. The growing number of demand letters and lawsuits highlights the urgency of making your website accessible to all users, including those with disabilities. However, the question remains: should businesses react to these seemingly “copycat.” 

Should You React To These Copycat Claims?

With the specter of potential bot-generated demand letters and ADA lawsuits, website owners are in a precarious position. While it’s crucial not to panic, it’s equally vital to take these claims seriously. Dismissing them offhand could lead to legal complications and considerable costs. 

If you receive a web accessibility demand letter:

• Consult an Expert: Before taking any steps, consult a legal expert knowledgeable in ADA compliance and web accessibility.
• Assess Your Website: Use automated and manual audits to gauge your site’s accessibility. Automated tools offer a quick overview, but human evaluations provide in-depth insight.
• Document Everything: Keep a record of all improvements and changes made to ensure accessibility. This will be beneficial in defending your business if faced with litigation.

A New Landscape for Web Accessibility

The fear of bots sending web accessibility demand letters is not unfounded. Automated tools and the emergence of “tester” lawsuits have created a new landscape that online business owners must navigate. The primary concern for businesses should be clear: make your websites accessible. Whether the threat comes from genuine users or automated tools, ensuring compliance is not just a legal necessity but also a testament to a company’s commitment to inclusivity and equality.

Partnering with Experts: 216digital

If you’ve received an ADA demand letter, we’re here to help. Through our years of experience in the trenches analyzing and studying these cases, we can determine how ADA non-compliance lawsuit firms identify their targets and how to protect your business. At 216digital, we will develop a strategy to integrate WCAG 2.1 compliance into your development roadmap on your terms so you can continue focusing on what matters most: running your business.
Scheduling a 15-minute complimentary website audit and consultation with our experts at 216digital.

As an online business owner, you’ve likely heard about the Americans with Disabilities Act (ADA). You understand its importance and that your website needs to be accessible to all users, including those with disabilities. However, when a website is found to be in violation of the ADA, its owner can face legal repercussions.

These may include receiving a demand letter.

But what should you do if you receive one? Who sends them? And how do you adequately address what is stated in the letter?

In this guide, we’ll cover everything you need to know about ADA website compliance demand letters. We’ll explain what a demand letter is, who sends them, and how to respond.

What is ADA Web Compliance?

Before we dive into the specifics of ADA web compliance demand letters, let’s first explore what ADA website compliance means. ADA stands for the Americans with Disabilities Act, which was enacted into law in 1990. This Act seeks to prohibit discrimination against people with disabilities in all public and private places open to the general public.

Although the ADA law was enacted before the internet became widely used, U.S. court decisions have extended the law’s scope to include websites and online platforms. Unfortunately, the DOJ has failed to formally adopt a set of standards or legal guidelines for what constitutes ADA web compliance, which means there is no way to absolutely stay protected from these lawsuits and demand letters. However, the disabled community has widely recognized the Web Content Accessibility Guidelines (WCAG) as the best existing standard for web inclusivity. WCAG 2.1 Level AA is the most up-to-date version of this standard.

ADA Web Compliance Demand Letters

An ADA web compliance demand letter is a legal notice sent to businesses to rectify non-compliant areas of a website. The letter aims to inform business owners that their website is not fully accessible, giving them the opportunity to correct it.

In recent years, the number of businesses receiving these letters has increased exponentially. In 2022, more than 1,500 demand letters were sent per week. This rise is partly due to heightened awareness of accessibility rights and the growing number of people with disabilities using the internet. Until equal access is provided for people with disabilities, the rate at which ADA website compliance demand letters are sent will likely continue to grow.

Who Sends ADA Web Compliance Demand Letters?

Demand letters are typically sent by an attorney representing clients with disabilities or advocacy groups who have identified ADA violations on a website. However, anyone with a disability who has been denied access to a public-facing website or digital platform can send a demand letter. These violations can range from difficult-to-use navigation menus to missing alt text and keyboard navigability.

While demand letters primarily come from attorneys, the Department of Justice (DOJ) also plays a critical role in enforcing accessibility standards. If a person with disabilities finds that a website is not accessible, they can file a complaint with the DOJ. The DOJ may then investigate and enforce action if necessary.

Who is at Risk of Receiving an ADA Web Compliance Demand Letter?

All online businesses open to the public risk receiving ADA web compliance letters, including eCommerce website owners, small businesses, large corporations, and nonprofits.

However, websites heavily reliant on visual content, such as online retailers, are among those most commonly targeted. In 2022, 2,387 businesses faced web accessibility lawsuits, and the retail industry accounted for almost 77% of cases.

While visual content is stimulating for some, images and videos may be inaccessible to certain website visitors. In fact, 58.2% of home pages are missing alternative text for images for visually impaired users. If website owners do not take proper measures to adjust their online content, the likelihood of receiving a demand letter is considerably higher. 

Breaking Down the ADA Web Compliance Demand Letter

Receiving an ADA demand letter may seem intimidating, but don’t panic. While the letter isn’t a formal legal complaint or lawsuit, it serves as a warning. However, failure to take action when receiving one can lead to further legal recourse. 

A typical ADA web compliance demand letter may include the following sections:

Violation Details

The ADA compliance demand letter will typically begin by explaining that your website has been assessed and found non-compliant with ADA standards. It will outline in clear language what the specific violations are. This may include thorough descriptions of accessibility barriers, such as incompatibility with screen reader technology or lack of keyboard navigability.

Request for Modifications

After highlighting the violations, the letter will contain a request for modifications you need to make to your website to achieve compliance. It might include specific WCAG checkpoints your site fails to meet and suggest remedies. For example, your website lacks sufficient contrast between text and background. In that case, the request might demand an improvement in this area.

Timeline for Achieving Compliance

The sender will specify a reasonable timeline for you to make the requested modifications. This could range from a few weeks to several months, depending on the nature and extent of the violations. It’s crucial to note this timeline and make sure you comply within the given time frame. Remember, this timeline is legally binding, and any delay can escalate the situation to a full-fledged ADA lawsuit.

Consequences

If you fail to meet the ADA web compliance demands within the stated timeline, you risk being subject to legal action. The consequences could include hefty penalties, court-ordered website modifications, and the stigma of a public ADA lawsuit. All of this could significantly impact your business’s reputation and profitability.

What to Do if You Receive a Demand Letter?

If you’ve received an ADA website compliance demand letter, it usually means someone has identified your website as ADA non-compliant. So what should you do?

Here are some steps to guide you:

• Understand the Requirements for ADA Web Compliance: Familiarize yourself with ADA website conformance standards and guidelines. WCAG 2.1 Level AA is the best measure for web accessibility.
• Seek Legal Advice:  A knowledgeable attorney with experience in ADA website compliance can help you understand the legal requirements and guide you on the best course of action.
• Review the Letter and Evaluate Your Website for Compliance: Carefully review the demand letter and evaluate your website based on the violations outlined. Determine if the claims are valid and identify areas that need improvements.
• Get a Website Audit and Remediate: Hire a professional to conduct an accessibility audit of your website and make the necessary changes to achieve compliance.
• Communicate with the Plaintiff: Respond to the letter, outlining the steps you’re taking to address the issues raised. Proactive communication can help de-escalate the situation and avoid a lawsuit.
• Monitor and Maintain: ADA Web Compliance is not a one-time event. Regularly review your website to ensure ongoing compliance. This proactive approach can help prevent future demand letters.

Stay Ahead of the Curve with 216digital

ADA web compliance is not optional for online businesses. Demand letters pose a real risk and can lead to serious legal consequences if not appropriately addressed. However, with a clear understanding of ADA standards and the right support, you can take steps to rectify issues and protect your business from potential legal action.

At 216digital, we understand the complexities of web accessibility and are here to help. We offer comprehensive services that not only audit your website for accessibility but also provide solutions to meet ADA compliance requirements. Our experienced team thoroughly understands WCAG guidelines, and we can help your business implement the necessary adjustments.

Don’t wait for a demand letter to land on your desk. Get ahead of the curve and ensure your website is ADA-compliant today with 216digital by scheduling a complementary 15 minute briefing.

When we discuss web accessibility, Section 508 of the Rehabilitation Act often surfaces as a critical element. However, understanding its full scope and whether it applies to your website can be confusing. That’s why we want to clear the air. In this post, we will discuss everything you need to know about Section 508, from its latest revision to how it could impact your business.

What is Section 508?

In the early 1970s, American lawmakers started to become aware of the need for legislation that ensured accommodation for citizens with disabilities. The first federal law was the Rehabilitation Act of 1973. 

This law was mainly concerned with how the government would support people with disabilities. It expanded approval for state vocational rehabilitation service grants, established federal accountability for research and training programs for those with disabilities, and designated government bodies, such as the Department of Health, Education, and Welfare, to coordinate disability programs.  

However, it did not have anything to do with web accessibility issues. It wasn’t until the introduction of the Internet and the rise of digital services that made Section 508 a cornerstone of digital accessibility.

Section 508

In 1998, Congress revised the Rehabilitation Act of 1973 to include Section 508. Section 508 states that all federal agencies must make electronic and information technology (EIT) accessible to disabled employees and members of the public. The law applies to EIT’s development, procurement, maintenance, or use, including government websites, documents, software, and multimedia.

The Latest Revision

In March 2017, the United States Access Board revised Section 508’s accessibility requirements for information and communication technology(ICT). The update provides more specific definitions of accessibility for EIT, offering clear guidelines for developers and website owners to follow.

There are five significant changes to Section 508:

• Focus on Functionality: Organized by functionality instead of product type to keep pace with technological advances.
• WCAG Compliance: The 2017 update formally established the Web Content Accessibility Guidelines (WCAG) 2.0 as the accessibility framework for agencies. Federal websites are required to meet at least WCAG 2.1 Level A and AA compliance.
• Content Accessibility:  All official agency content aimed at the general public, along with specific non-facing categories, must be accessible to those with disabilities.
• Synchronized Tools and Technology: All software and operating systems must be compatible with assistive technologies like screen readers.
• Expanded Marketplace: This combines chosen global standards such as WCAG 2.0 and aligns with the European Commission’s ICT Standards (EN 301 549) to broaden the range of accessibility solutions available.

How Does WCAG Affect Section 508?

As mentioned earlier, the latest revision of Section 508 aligns with WCAG 2.1. WCAG, or the Web Content Accessibility Guidelines, are the international standards for web accessibility developed by the World Wide Web Consortium (W3C).

So, in effect, WCAG informs the standards set forth by Section 508. WCAG is often considered the golden standard in web accessibility, and following its guidelines can be a big step toward achieving both Section 508 and ADA compliance.

How is Section 508 Different from the ADA?

The American with Disabilities Act (ADA), passed in 1990, prohibits discrimination against individuals with disabilities in all areas of public life. While Section 508 specifically deals with federal agencies, the ADA applies more broadly. It prohibits discrimination against people with disabilities in all places of public life. Title II of the ADA pertains to state and local government functions. At the same time, Title III involves private businesses and commercial entities operated by private entities.

Both acts relate to accessibility for people with disabilities but have significant differences. 

Section 508

Section 508 is a set of rules that primarily apply to government entities. However, it also applies to organizations that receive federal funding. This means that government-supported institutions like museums, universities, medical centers, and programs partially federally funded must follow Section 508. 

Section 508’s accessibility rules also extend to contractors or third-party workers who provide services to government bodies or federally funded organizations. Therefore, any digital platform or website associated with a federally funded entity and used by the public must meet Section 508 standards. Small businesses should consider this if they want to pursue government grants or contract work with federal agencies.

The ADA

Section 508 primarily concerns digital accessibility for federal agencies and federally funded organizations. In contrast, ADA has a broader reach, covering both physical and digital spaces across public and private sectors. 

The ADA requires businesses to make accommodations for their employees and their customers so that those with a disability may not be excluded from participation in or denied services. 

While court cases have interpreted the ADA to include websites as part of “public accommodations,” it does not provide specific technical guidelines like Section 508. Instead, a sharp increase in lawsuits over the last few years has confirmed that the ADA applies to websites and online applications just as much as to physical stores and offices. For example, in 2022, there were 2,387 web accessibility lawsuits filed in Federal Court and California State Court under the Unruh Act. 

Does Section 508 Apply to My Business?

You might wonder if Section 508 applies to you if you’re a business owner. The answer largely depends on your business type. If you are a federal contractor, receive federal funding, or serve a federal agency, Section 508 compliance is mandatory. Consult with a legal expert to fully understand your obligations when in doubt.

If you’re not a federal agency and still want to make your website accessible, following Section 508 guidelines can be an excellent place to start. It’s always a good idea to strive for inclusivity in your business practices.

What’s the Risk of Non-Compliance?

Non-compliance with Section 508 can result in serious legal consequences.

Let’s take a look at some real-life examples:

NAD vs. Harvard and MIT

In 2015, the National Association of the Deaf (NAD) filed lawsuits against Harvard University and the Massachusetts Institution of Technology (MIT). The NAD argued that the universities failed to caption online course content, discriminating against people with hearing disabilities. Both universities settled, leading to more rigorous captioning commitments.

On November 8, 2019, the National Association of the Deaf (NAD) reached a settlement with Harvard University requiring high-quality captioning services for its publicly available online content. The settlement, memorialized in a class action consent decree, was approved by the Court on February 27, 2020. The Plaintiffs reached a similar settlement with MIT, which was approved on July 21, 2020.

NFB vs. Department of Education

Similarly, the National Federation of the Blind (NFB) filed a complaint against the United States Department of Education in 2009. The NFB claimed that one of the Department’s websites, called the U.S.A. Learns violated Section 508 because it’s inaccessible to those who rely on text-to-speech technology or Braille displays to access information. 

The U.S.A. Learns, a free English-language learning website operated by the Department of Education, underscores the requirement for any government-funded online platform to comply with Section 508.

These cases highlight that non-compliance can result in time-consuming litigation, financial penalties, and damage to reputation. Prioritizing digital accessibility is critical for businesses and institutions, not only for legal compliance but also to ensure inclusiveness for all users. 

Section 508 Compliance with 216digital

Understanding and implementing web accessibility guidelines, like those set out by Section 508 and WCAG, is essential for any business operating in the digital landscape today. Non-compliance can result in severe legal and financial consequences, as demonstrated by the real-life lawsuits against Harvard, MIT, and the Department of Education. But beyond compliance, embracing web accessibility is about inclusivity and fairness, ensuring all users, regardless of ability, have access to information and services.

That’s where 216digital comes into play. We understand that navigating the complex landscape of web accessibility can be daunting for businesses of all sizes. Our experienced team is equipped with in-depth knowledge of Section 508, WCAG, and ADA compliance. We offer comprehensive services to ensure your digital platforms are not only legally compliant but also inclusive and user-friendly for all users, regardless of ability.

By choosing to work with 216digital, you are not only safeguarding your business against potential legal repercussions but also championing digital inclusivity. Don’t wait until it’s too late – contact us today to ensure your website is accessible for everyone. Together, we can make the internet a more inclusive space.

As a website owner, you’ve likely heard about web accessibility and the implications of the Americans with Disabilities Act (ADA) on your digital space. Web accessibility is an integral part of the digital world, aiming to ensure that everyone, including individuals with disabilities, can access and use web content effectively.

In recent years, there has been a surge in ADA web compliance lawsuits that could impact your website and business. One key issue is the debate over whether ADA web accessibility “testers” have the legal standing to sue. This article aims to elucidate this complex issue and help you understand how it may affect your business.

The Americans with Disabilities Act and Web Accessibility

The Americans with Disabilities Act (ADA), signed into law in 1990, prohibits discrimination against individuals with disabilities in all areas of public life. However, it was initially unclear whether this act extended to websites, as they were less prevalent when the act was passed.

With the advent of the digital era, courts have gradually expanded the ADA’s scope to include websites, considering them as ‘places of public accommodation.’ This interpretation implies that websites should be accessible to individuals with disabilities, including those who have visual, auditory, or motor impairments.

In 2022, the Department of Justice (DOJ) published guidance confirming that the ADA applies to business websites. Non-compliance could expose your business to the risk of legal action, including lawsuits and fines.

The Rise of ADA Web Compliance Lawsuits

Recently, lawsuits related to ADA web compliance have become increasingly common. Many businesses, both small and large, have faced legal challenges due to the lack of accessibility of their websites.  In 2023 alone, federal and state courts dealt with 4,605 lawsuits related to web accessibility. 

These lawsuits argue that inaccessible websites create a discriminatory environment, depriving people with disabilities of the same opportunities afforded to those without. While many of these lawsuits are initiated by individuals with disabilities, a new group known as “testers” has emerged as a significant force.

Learn more about What You Need to Know About ADA Web Accessibility Lawsuits.

What is an ADA Web Accessibility “Tester”?

An ADA web accessibility “tester” is an individual who checks websites for ADA compliance. Their primary goal is to identify ADA violations, not necessarily to use the services or products provided on the website.

These individuals, sometimes people with disabilities themselves or professionals in accessibility consulting, are equipped with the knowledge and tools to test whether a website complies with established accessibility standards, such as the Web Content Accessibility Guidelines (WCAG).

If the tester deems the website inaccessible, they may file a lawsuit against the business. Some view this role as essential for holding companies accountable, while others see it as an opportunity for lawsuit abuse and exploitation.

What Gives Someone Ground to Sue?

Under the United States Constitution, a party must have standing to sue. ‘Standing’ is a legal term that refers to a person’s ability to demonstrate a sufficient connection to and harm from the law or action being challenged, supporting that person’s participation in the case. This requirement implies the person must allege that they attempted to access the business but were unable to or were interested in doing so but could not due to the website’s non-compliance.

In ADA lawsuits, the person suing must show that they experienced discrimination due to the website’s non-compliance. The question of standing has been a significant point of contention, especially when it comes to testers. 

Can someone who has no intention of using your services or buying your products sue you because your website is not accessible?

This question brings us to a landmark case in ADA web accessibility lawsuits – Acheson Hotels, LLC v. Deborah Laufer.

Acheson Hotels, LLC v. Deborah Laufer

In late March, the case of Acheson Hotels, LLC v. Deborah Laufer became a focal point in the discussion surrounding the ADA web accessibility testers’ right to sue.

Plaintiff Deborah Laufer, a self-proclaimed “tester,” has filed over 600 lawsuits alleging ADA web accessibility violations since 2018, primarily targeting the hospitality industry.

The lower courts initially dismissed Laufer’s case against Acheson Hotels, arguing that Laufer did not intend to visit the hotel and, therefore, had not suffered any injury. However, Laufer appealed the decision, asserting that she was indeed affected by being unable to access information on the hotel’s website due to her disability. Despite acknowledging her role as a tester, Laufer argues that her motive is irrelevant.

In their brief in opposition, Laufer’s counsel referred to the text of the ADA, writing, “[…] One can readily find that a disabled person’s encounter with violations of the ADA is a real-world harm by reviewing the plain language in the findings and purposes set forth by Congress.”

The First Circuit Court of Appeals agreed and reversed the initial decision, asserting that Laufer had standing. 

Supreme Court Case Takes Unexpected Turn

On March 27, 2023, the Supreme Court agreed to hear a case, but the matter took an unexpected twist. Laufer’s attorney was suspended from practicing law for defrauding hotels by lying in fee petitions and during settlement negotiations. Consequently, Laufer voluntarily dropped her lawsuit, rendering it moot. In a unanimous decision, the Supreme Court agreed.

A lawsuit can become moot when its central conflict has been resolved, as was when Laufer withdrew her claim. While the Supreme Court frequently addresses issues of standing, the Court can still address issues of mootness and the cases standing in any order it chooses.

While this particular lawsuit was declared moot, the split among the circuits regarding tester standing is still “very much alive,” and it is open to ruling on this issue in future cases.

The Future of Web Accessibility

216digital is not a law firm; we cannot provide legal advice. However, as experts in web accessibility, we understand that significant Supreme Court cases often influence the accessibility landscape. Although the Court’s ruling in Acheson Hotels, LLC v. Laufer does not alter the law, it signals the Court’s willingness to address concerns regarding the legal standing of ADA testers.

This stance may dissuade some ADA testers from initiating lawsuits, particularly against well-defended, high-profile defendants. Yet, as we’ve emphasized in previous articles, the prevalence of serious accessibility barriers is not few and far between.

With the uptick in web accessibility lawsuits each year, prioritizing web accessibility has never been more crucial. To minimize potential legal risks, online businesses must monitor their website’s accessibility and collaborate with accessibility experts to adhere to the WCAG standards.

Steps Businesses Should Take to Ensure ADA Compliance

Considering current affairs, it’s crucial that businesses ensure their websites are ADA-compliant. Here are some steps to take:

1. Audit Your Website: Conduct a thorough website audit using ADA compliance tools or hire a professional.
2. Follow WCAG Guidelines: The Web Content Accessibility Guidelines are reliable recommendations for making your website accessible. Aim for WCAG 2.1 Level AA compliance, which covers a broad range of recommendations for making web content more accessible.
3. Regularly Update Your Website: Web accessibility is not a one-time task. Regularly review and update your website to ensure ongoing compliance as guidelines and technologies evolve.
4. Train Your Team: Ensure your team understands the importance of ADA compliance. Provide them with training on maintaining accessibility during website updates and content creation.
5. Regular Monitoring: Regularly monitor your website to ensure ongoing compliance.
6. Consult with an Expert: If in doubt, consult with a web accessibility expert or lawyer specializing in ADA compliance to fully understand your legal obligations and ensure you’re doing everything necessary to comply.

Learn more about Mitigating ADA Lawsuit Risk: Affordable Solutions for Online Business.

Protect Your Online Business

ADA and web accessibility are crucial considerations for all website owners. The debate over whether ADA web accessibility “testers” can sue carries potentially significant implications. Regardless of the outcome, businesses need to strive towards full ADA compliance to avoid lawsuits and ensure a better, more inclusive user experience for all.

Find out if your website is ADA compliant today by scheduling a 15-minute complimentary website audit and consultation with our experts at 216digital. We can help determine if your website is at risk of a lawsuit and offer fast, effective ADA compliance solutions. This ensures your site is accessible to everyone, reducing your risk of litigation so you can continue focusing on what matters most: running your business.