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Are You a Target?
The Avanti Hotel is a 10-room boutique hotel in Palm Springs, California featuring a serene, pet-friendly setting and views of the San Jacinto mountains. In 2018, Avanti was hit with one of the hundreds of accessibility lawsuits filed this year, claiming their website could not be used with assistive technology. The lawsuit was filed by Manning Law in Newport Beach, who had filed 354 previous ADA cases, primarily in California, in the last 12 months. Like the others, Avanti has a few options: they can fight the charges and face legal fees, both their own and possible legal fees for the plaintiff plus damages, or they can settle out of court and still pay legal and settlement fees. Both of these options are in addition to the cost of making their website accessible. Meanwhile, Avanti Hotel has chosen to pare down their website to the bare basics, explaining in the first line of their home page, “The requirements of the Americans with Disabilities Act leaves us no option but to deactivated some our pages. Please call direct.”
What could have been done to avoid this? The Avanti Hotel’s case is by no means unique. Over the past few years, the number of accessibility lawsuits has increased exponentially, and small- to mid-size businesses are often the hardest hit. Companies work with architects and interior designers who can ensure ADA compliance for their physical location, providing ample space and accommodations for those with disabilities before even opening their doors to the public. However, many business owners and their web designers are unaware that their digital location needs to be accessible as well. That costly mistake is landing businesses in court, often to the tune of thousands of dollars.
It Only Takes One Person Unable to Access
The frustration a person feels when they are prevented over and over from accessing the information they need to go about their daily lives can mean that they choose to sue a business. In the case of the Avanti Hotel, the plaintiff was in Montana, and the information and booking services offered on their website were not available to her because it was presented in a format that was not accessible with a screen reader. Imagine attempting to make a hotel reservation, only to find the calendar used to choose reservation dates won’t work with a screen reader, or not being able to locate the submit button to pay for your stay because the website failed to label it, meaning the time spent going through the reservation process was wasted. Now you have to start all over via phone. Imagine that happening over and over as you tried to interact with businesses online. And imagine that when you complain, you’re told it’ll be resolved, only it isn’t. Not in a week, a month, or a year, because your complaint may never have actually reached a person who can fix it. It’s easy to see why a person would resort to a lawsuit to resolve inaccessibility issues.
And there is another source of accessibility lawsuits currently on the rise. There are lawyers using web crawlers to scan hundreds of websites, searching code to find accessibility issues. These crawlers are being used to generate lists of defendants for class-action lawsuits.
Ensuring your website is accessible can make a huge difference to in the experience of customers accessing your website using assistive technology such as screen readers, and is by far your best defense against lawsuits.
Settling vs Fighting: Expensive Either Way
The cost of accessibility lawsuits varies widely from state to state, and on a federal level, plaintiffs can only recover for court costs and legal fees. Even so, legal fees can cost $25,000 or more, on top of the cost of remediating the website, especially if the case goes to court instead of being settled.
Because going to court is so costly, most defendants like Avanti Hotel choose to settle out of court. It will likely still cost the hotel $8,000- $13,000 to settle, in addition to website remediation costs. Generally, settlement fees can vary from a few thousand up to $20,000.
Fighting charges can be significantly more expensive. Because laws are not entirely clear on exactly what standards need to be met by websites, fighting charges is often futile. Even a small business like the Avanti Hotel was advised not to fight the lawsuit because they could face $25,000 in court fees alone. If a defendant chooses to fight the charges and loses, they may be looking at as much as $100,000 in court costs and legal fees paid to the plaintiff’s attorneys, plus the price of fully remediating their noncompliant website and their own legal fees.
State Laws May Apply As Well
Most publicized accessibility lawsuits that deal with federal ADA violations do not mention any additional state laws that may also be applicable in these cases. While the ADA does not permit plaintiffs to recover damages at a federal level, some states, like Florida, New York, and California, allow private plaintiffs to seek monetary damages under separate state laws. California even has a $4000 minimum penalty under the Unruh Civil Rights Act for each ADA violation in addition to attorney’s fees, monetary damages, and remediation costs. The Department of Justice can sometimes get involved and impose civil penalties of up to $55,000 for the first violation, and up to twice that for any subsequent violations.
Compliance is Worth Every Penny
Remediating your website to make it fully compliant and accessible can vary in price depending on the number and type of pages and documents. Testing a website to determine what’s accessible and what needs remediation also depends on the size of your website and the types of issues found. While these costs can add up, keep in mind that if you are named in a lawsuit, you will be paying these remediation costs on top of a potential settlement, court costs and legal fees. It makes far more sense to pay to tackle testing and remediation up front to avoid paying the additional legal fees and make your company more accessible to everyone. Further, the publicity from a court case can be embarrassing and cost you business down the road.
It Pays to Be Accessible
There is a silver lining: web accessibility can be expensive, but it can also provide a sound return on investment and broaden your audience. Nearly 20% of Americans experience some type of disability, so making your website accessible means you are making your message available to that many more potential customers. Even those who do not live with disabilities on a daily basis find accessible websites easier to use, as features like larger fonts, contrasting colors, clearly labeled tabs, and captioning for audio and video files are helpful for people using the internet in a variety of environments, like bright sunlight or a loud, crowded space. And it’s not just blind people who use screen readers. Many people who experience difficulty reading or have some other learning disability also use screen readers to listen to content.
Accessible sites are easier for everyone to use, and companies often experience an over all growth in revenue simply by making their website accessible. That increase is attributed partly to the more usable nature of the website, since 71% of customers leave a website they find difficult to use. Further, nearly 90% of consumers value companies that demonstrate corporate social responsibility by considering the needs of others in their business practices, and would purchase a product because the company supported an issue they cared about. With nearly 20% of the population having family members with a disability, this can be significant.
Address the Issue Before It’s a Problem
Invest in building a website that’s accessible from the beginning, or as soon as you realize remediation is necessary. The sooner your website is accessible to everyone, the sooner you can reduce or eliminate the risk of costly and unflattering lawsuits. Discussing accessibility initiatives from the conception of your website is a good way to make sure no details are missed and is often far less expensive than remediating what’s already been created. Not all web designers are familiar with accessibility, so it can be useful to enlist the services of a professional accessibility consultant to make sure all issues are identified and addressed correctly. Professional testing and consulting can identify issues on existing websites as well and work with the original designer to prioritize issues and determine a plan of action for remediation. Having a plan of action, even one that will be completed over the course of time, can go a long way to mitigating your risks.
Use the money you won’t need to spend on legal fees to build a stellar marketing campaign that includes everyone.
Want to proactively prevent lawsuits for your organization? Let’s talk.
Nina Overdorff
Nina comes to Equidox with years of sales and marketing experience from a variety of industries and holds a BS in Language Arts Education. Nina has a passion for words, storytelling, and information, which she believes everyone should have access to regardless of ability. After spending time as a teacher with a blind student, she became much more aware of the limitations and abilities of web accessibility, and how essential it is to those experiencing disabilities. “Being able to access information equally ensures that everyone has an equal opportunity for education, employment, and success in life.”