Why an ADA-compliant website saves dollars and makes sense

The internet is a powerful tool that has made many everyday activities like shopping, entertainment and seeking services more convenient, but that’s not the case for millions of users with disabilities who are being shut out by difficult-to-use, non-accessible websites. Just as physical spaces should be easy to navigate for all, the same goes for digital spaces on the World Wide Web.

Ensuring that your business’ website is Americans with Disabilities Act (ADA) compliant is not only morally right, it also makes financial sense.

Inaccessibility is costly (in more ways than one)

A 2019 Nucleus Research report on blind and visually impaired internet users found that online retailers are losing as much as $6.9 billion annually, as users abandon transactions on non-accessible websites in favor of more accessible competitors.

There is also the threat of lawsuits. Even as the Supreme Court in March 2023 agreed to hear Acheson Hotels, LLC v. Laufer to decide whether “testers” or serial plaintiffs have standing to bring website accessibility lawsuits against businesses they have no intention of using, these lawsuits continue to number in the hundreds each month nationwide.

Accessibility.Works estimates that a single demand letter alone can cost a business $5,000 to $20,000 to settle (not including costs of remediation, which may be a requirement of a settlement) — no insignificant amount for the mostly small to mid-sized businesses subject to these letters. Beyond demand letters, plaintiffs who actually file digital accessibility lawsuits under the ADA cannot be awarded monetary damages, but they can recoup attorney’s fees. What’s more, some state anti-discrimination laws, such as California’s Unruh Act, allow monetary awards to successful plaintiffs.

The biggest potential expense for businesses, however, is the cost of fighting these lawsuits. Just ask Domino’s Pizza. In perhaps one of the most well-known digital accessibility lawsuits, in June of 2022, Domino’s reached a settlement agreement with Guillermo Robles, a visually impaired man who sued the pizza chain in 2016. Robles claimed the website’s inaccessibility prevented him from being able to order a pizza and use online coupons. Though the terms of the settlement are confidential, six years of litigation no doubt resulted in a hefty price tag.

More than just websites

Although the vast majority of digital accessibility lawsuits involve desktop websites, plaintiffs have also filed claims directed at mobile websites, mobile apps and video players. That’s why any business with an online presence should work to ensure that its digital offerings adhere to the latest accessibility standards.

What are the standards?

The World Wide Web Consortium (W3C) develops Web Content Accessibility Guidelines (WCAG) that are widely accepted industrywide. Currently, the W3C is working on updated standards, WCAG 2.2, which are set to be published later this summer. The current iteration is WCAG 2.1.

“The WCAG standards have really become the de facto standards, both as a result of case law, and also, for example, the California consumer Privacy Act recommends compliance with WCAG 2.1,” said Michelle McGeogh, who co-leads Ballard Spahr’s Accessibility team.

WCAG 2.1’s guidance is highly technical and meant for web developers, but it centers around four basic principles that web content be:

• Perceivable
• Operable
• Understandable
• Robust

Accessibility widgets may not be enough

Some companies have turned to accessibility widgets or overlays, which are automated software programs that are usually activated by a button on a website. Users can select from different options, such as text adjustments, magnification, contrast options and a screen reader mode for blind users, which layer over the webpage to address various accessibility issues. But a one-size-fits-all approach may not protect companies from litigation.

According to data from UsableNet, plaintiffs filed 575 lawsuits against businesses using accessibility widgets on their websites in 2022. These lawsuits often allege that the widgets actually work as barriers to accessibility. While waiting for further guidance from the Supreme Court, consulting with an accessibility attorney to implement an ADA risk management program would be a smart move for any business in the digital age.

“We know that there are millions of disabled individuals in the United States, and making your website or other digital properties, mobile applications accessible to all consumers, is really good for the bottom line,” McGeogh said.

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Kim’s Korner is a series of articles by Ballard Spahr’s emerging company and venture capital attorneys. The column is not legal advice. The substance of the column is derived from our experience working with founders and details many of the current critical issues facing startups.

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