Kris: This is the Accessible.org Podcast, my name is Kris Rivenburgh. To start off I want to qualify that everyone who listens to this podcast just hit the jackpot. This is going to be an amazing episode that reveals the best practices in preventing a website accessibility lawsuit. And the reason why today’s episode is such a gold mine is we have Richard Hunt on the show.
Richard defends businesses nationwide in ADA and FHA accessibility lawsuits. And ADA stands for Americans with Disabilities Act and FHA stands for the Fair Housing Act. Richard also advises on how to quickly and effectively deal with ADA and FHA demands, minimize litigation risk and how to best comply with the ADA and FHA.
Richard, thank you very much for being on the podcast. Can you tell us more about who you are and what you do?
Richard: Thanks Kris. As you said, my practice is focused on ADA and FHA accessibility litigation. I’ve been practicing law for almost 40 years as a business litigator, but about 15 years ago I began to focus on ADA and FHA accessibility issues. My clients are businesses of all sides that need advice on or help in litigation, mostly in cases under Title III of the ADA and section 3604F of the Fair Housing Act. Those are laws that govern laws with accessibility by those with disabilities and there are state law equivalents as well.
So what I do can range from matters as small as a half hour on the phone with a client that has a problematic request for an emotional support animal, up to defending a major class action lawsuit based on website accessibility or perhaps a badly built apartment complex. But it’s basically focused on litigation that involves the rights of those with disabilities.
Kris: Perfect. Well let’s get right into it. Richard, can you give listeners an overview of what’s happening with website accessibility litigation?
Richard: Sure Kris and I’ll start with good news. It looks like the rate at which new federal cases against websites that are being filed has flattened out and the current rate is just below the peak which we got to in 2019. That’s good news because for a couple of years it looked like we were headed towards a pandemic of federal court litigation, now it looks like it’s steadied out. And we’ll probably have the same level of claims, more or less, year after year.
Unfortunately, although the federal filings have leveled out, there has been a continuing increase in state court filings, especially in California under California’s unrule (???) act. And many of those cases are targeting smaller businesses that have pretty much been left alone by the big firms that were filing cases in federal court.
We’ve also seen a couple of oddball spin-offs…a law firm in New York sued a bunch of people claiming that gift cards had to be accessible to those who were blind. Those cases are being dismissed now, but not without having cost businesses a lot of money. And a group of Florida based lawyers are sending demand letters claiming that an inaccessible website violates the Fair Housing Act. They haven’t filed any lawsuits yet, but these show just how law firms are looking for creative ways to use the disabilities rights laws to generate litigation and mostly, of course, to generate legal fees.
Kris: And you hit on a point of emphasis that I want listeners to focus in on. Yes, big companies are targeted, but now increasingly so are the entrepreneurs, the sole proprietors, the one person and small business websites. I know of multiple bloggers that have received demand letters and these people just have no idea of what to do next. So what are the next steps for a small business owner who receives a demand letter?
Richard: Well, oh and by the way I should have said that this move to suing smaller businesses is an important part of the website litigation news. Because you’re right…until recently if you were a small business you didn’t have to worry very much because the firms that were doing this kind of work weren’t targeting small businesses. That’s not true anymore. But the advice for a small business is really the same as the advice for a big business and I divide it up into a seven-part strategy for businesses of any size.
First, you need to learn what website accessibility means. Second, you should adopt a website accessibility policy. Third, you need to add a website accessibility page with a customer service link of some kind to your website. Fourth, you should add a browsewrap arbitration clause, which we’ll talk about. Fifth, you should find a consultant to help identify problems. And I’ll interrupt myself here to say steps 1-5 need to take place very quickly. And if you find the consultant first that may be helpful, so these aren’t purely chronological. Sixth, make a plan to fix your website. And seventh, fix your website. It’s that simple. You start with knowing what you’re up against and you end up with fixing the problem.
Kris: And I have in my notes to tell listeners that that’s the most important part of this episode. If you follow those seven steps, you’re going to dramatically reduce your chances of ever receiving a demand letter. And that’s what this is all about. This is about prevention. It’s about never getting a demand letter in your mail. Can you go ahead and elaborate on some of those steps?
Richard: Sure. First…learning what website accessibility means. Even large businesses that have, you know, big in-house IT departments frequently don’t understand website accessibility. And large and small businesses need to understand what they’re trying to accomplish with their website and website accessibility before they can move forward to a constructive resolution. So you have to spend a little time understanding accessibility. That doesn’t mean spending hours and hours, but it might mean spending an hour on the phone with a lawyer like me or a consultant like you, Kris. You don’t have to know everything, but you do have to know a little bit about the basics.
And I should say you have to know that a lot of these sort of common wisdom about accessibility that you can find if you just use Google will probably turn out to be wrong. So you need to know what your problem is. A website accessibility policy is just a written policy that states in more or less detail how you’re going to get your website to be accessible. The great thing about a website accessibility policy is you can create one almost overnight. So it’s a step you can take with almost no cost and very quickly.
The third thing, which is an accessibility statement on your website, falls under the same category. Creating a new web page with a website accessibility statement and a customer service link is pretty easy to do. It doesn’t cost much money, but it creates a good appearance for customers and for courts. We’re going to talk about browser arbitration, I think, in a little bit more detail later. But step five…hire a consultant. This is really important because hiring a consultant to find out what’s wrong with your website goes beyond simply trying to respond to a demand letter.
For reasons that we probably won’t discuss, simply because it would take forever, but demand letters typically only scratch the surface of what might be problems with a website. And the only way to get down beneath the surface problems is to probably hire an accessibility consultant, especially for small businesses. It’s conceivable that your website vendor will know something about this, but it’s unlikely. So hire a consultant because you’re going to need the consultant to help you fix the website. The sixth item is to make a plan with a budget to fix your website. Having a plan and a budget is good in court, but more importantly, it’s good for you because if you don’t have a plan, it’s never going to happen.
So with your consultant work out how you’re going to fix the website…how long you’re going to take to do it, try to figure out how much it’s going to cost. It may be that for budget reasons it’s going to take a long time, you just can’t afford to spend money immediately. But you need to know that at some point you’re going to reach this end goal of having a website that is usable and accessible by people with disabilities. And of course the seventh step is obvious; having a plan doesn’t do any good if you don’t implement it. So implement the plan.
Kris: And you made a lot of good points…two things I want to highlight are one, website accessibility is not a quick fix. It does take awhile, it’s a process. So the best part is to get started and just because some of making your website accessible is technically out of your reach, if you’re on a small budget still make that good faith effort. There are a lot of things that you can do simply by researching and looking up YouTube videos and there are some edits that you can make that will make real differences in the level of accessibility of your website.
Also, I think this is really, really important for people to understand. Your traditional ADA defense attorney, your traditional web developer…they aren’t familiar with accessibility. So on both the legal and technical sides, what I see happening is a lot of people that are going to the ADA defense attorney who does not specialize or does not have the experience in website accessibility and that’s not going to help you. You need an attorney who actually does this stuff, like Richard. And you also want a web developer who is familiar with accessibility.
Yes, you can take your…if you get an audit you can take that audit and give it to a developer and if they’re really good and they’re skilled and they show a lot of care and that will work for you. But you have to understand that your traditional web developer, and that includes web designers, your traditional people that are working on your website…they’re not familiar with accessibility either. So just because they are tech savvy doesn’t mean that they understand this particular part of websites.
Kris: Did you have something to add to that?
Richard: One of the things when you talk about developers and website creators to remember is that except for the large developers who work on government contracts, accessibility was not on their radar in website development until early 2016. And so most developers have never thought about accessibility and you’re going to need somebody who has thought about it and has thought more or less deeply about it if you’re going to make any progress.
Kris: And your seven-step strategy, it runs parallel to my broad advice, which is to fully embrace website accessibility and take a genuine commitment towards it. And I always say to you, be aggressive. Just be aggressive and attack making your website accessible. There’s no way around this, so if you are someone who likes to look for loopholes or you just want to avoid it and make it into a bureaucratic project that you put off…don’t. One reaction I see online is people looking for an exception, such as the 15 employees. That’s not an exception for Title III, so that’s the wrong approach and there really aren’t any exceptions. Richard, another common reaction I see…people want to ignore their demand letters and hope they go away. Can you tell us why that’s a bad idea?
Richard: Sure. There are two reasons why it’s a bad idea. First, it’s unlikely that the demand is just going to go away. I know that there is a firm in California that sends out so many demand letters they have a backlog. And so sometimes it takes them months between filing and sending the demand letter and actually filing a lawsuit, which gives people a false sense of hope the demand letter is the last thing they hear.
But this particular firm and every other firm is eventually going to file a lawsuit. So ignoring it will not make the lawsuit go away, it may just postpone the filing. The other reason is there is more than one law firm filing accessibility lawsuits. If you’re lucky and your demand letter is from somebody that isn’t actually going to follow through and sue you, that doesn’t mean that there won’t be another demand letter from another law firm. And what’s happening now in the website accessibility business is that the cases have gotten enough attention in the legal press that law firms that weren’t in this business before are looking at it and saying, “Oh, this is a good way to make a profit.”
So we can expect to see more law firms out looking for lawsuits on the internet and that means that the one demand letter that doesn’t go any place is going to be followed up by a demand letter that does go some place. And frankly, what you will have missed by simply ignoring the demand letter is the opportunity to fix your website before you get the next one.
Kris: Another good point because you could just as easily get that second demand letter as you can the first. And I think that’s something that surprises even some of the bigger companies is they get the first demand letter, and then they get another demand letter. And they think just dealing with the first one is addressing this and it’s not. You can get hit by waves of these things. And of course as soon as you have any legal entanglement you have expense. Richard, can you give listeners an idea of what they can expect to pay for one settlement claim or two if they wanted to go ahead and try to defend this claim, how much would that cost? And then also, does the cost vary whether it’s an ADA or FHA claim?
Richard: Yes, it does, to answer your last question first. It does matter and the good news is right now, as far as I can tell…there’s this one law firm based in Florida that is sending out Fair Housing Act demand letters, based on website accessibility. And so far they have not filed any lawsuits. So getting out of that particular claim is…none of my clients have ever paid a penny and none of my clients have ever been sued. That’s a tiny bit of good news.
Here’s the bad news. The firms that are filing the lawsuits under the Americans with Disabilities Act, which is a much stronger claim, are not settling cheap. I would say the minimum settlement from one of the established firms is going to be ten thousand dollars plus most of the time settlements closer to twenty thousand dollars plus a promise to remediate the website. So you’re looking at that kind of expense to settle with one of these major law firms. There are a few firms out there, I think of them as bottom feeders, they’re sending out demand letters without any real intent to pursue them, they might settle for three or four thousand dollars. But if you get a demand letter, you need to note who’s who before you start negotiating.
The other piece of bad news is that fighting an ADA case is probably going to cost you more than settling an ADA case, even if you win. There are good defenses available for these claims; there are technical defenses that we lawyers love. But for procedural reasons, by the time you can assert one of those defensives and have any chance of winning on it, you will have spent more than ten or twenty thousand dollars in legal fees. So it’s going to always…almost always be cheaper to settle the case than to fight it. And that’s true even if you win.
Now I do have clients that, as a matter of principle, will not settle these cases. My only advice to them is if you’re not going to settle then you’re in for a fight until the end because if you decide to fight halfway and then decide it’s been too expensive and you should settle it, you’ll have wasted a lot of money. So you make a strategic decision up front, I’m going to settle it as quickly and as inexpensively as possible or I’m going to fight it until the bitter end. My advice is almost always settle it up front as quickly and as cheaply as possible.
Kris: I like that thought process because there are…the thing is there are legal defenses that are available and they’re really good defenses. But I rarely discuss going to the defenses because they’re largely irrelevant. The isn’t mock trial, this is real life with real money at stake, time, energy and in almost all scenarios it’s inefficient to fight these claims. Which brings us back to demand letter and lawsuit prevention. I want to ask you about a recommendation you had made on your blog. You talk about putting a browsewrap notice on your website that highlights an arbitration clause for website accessibility claims. Can you tell us what a browsewrap notice is and why arbitration?
Richard: Sure. Browsewrap is a term that comes from the decades old idea of something called a shrink wrap notice or a shrink wrapped license. So in the old, old days, as I was explaining to my children the other day, computer software came in a box. And in the box were a disc and even a user manual. But the box was shrink wrapped and on the shrink wrap was a notice that said, “If you open this box you’re agreeing to the terms and conditions of sale.” So you had a shrink wrap notice.
With the advent of the internet, we have no more shrink wrap, no more boxes and no more discs. But instead we have click wrap and browsewrap notices. And a click wrap notice is something that pops up and you have to click on it before you can use the software or you can use the website. A browsewrap notice is something that just appears on the website, usually down in the footer or you’ll see something that says like, “Terms and conditions”, with a link to a long document that you’ll never read. But that’s browsewrap, it’s something that you’re supposed to see when you use the website that will alert you to the fact that you’re agreeing to some kind of terms and conditions. In this case, the terms and conditions that I’m suggesting is an arbitration clause.
Kris: So and then, just to distinguish the click wrap…think of the times when you were forced to click on something or click on a box before you’re allowed to proceed. So it takes an actual action on your part to continue on with, let’s say, using some software. You’ll see this on software agreements where you agree to the license terms. Going back to your browsewrap recommendation, where does arbitration fit into this?
Richard: Well, there’s…I think there’s really good reason to believe that a properly written website arbitration clause will allow a business if they are sued, to force the matter out of federal court or out of state court and into arbitration. And moving a case into arbitration is one of the very few things that you can do at the very beginning of a lawsuit that isn’t too expensive. And if the arbitration clause is written properly, what you can accomplish is moving your dispute…your lawsuit from an expensive and time consuming place with federal courts or state court to an inexpensive and rapid place, which is arbitration
And what that does is it takes away from the plaintiff, their big threat: Because their threat in terms of settlement is that they can always make you spend a lot of money. And if you can put them in a place like arbitration where they can’t make you spend a lot of money, then you’re in a better negotiating position. And you can spend your money on website accessibility, instead of lawyers.
Kris: And I should have made this more clear when I even brought up arbitration, but for listeners who have a hazy idea of what exactly arbitration is…just think of it as a way that you can resolve a dispute without going to court. And when you have this arbitration agreement with other parties, you’re saying, “Hey, if we have a problem, we’re all agreeing that we’re going to solve it in this outside arbitration panel and not actually in court.” And that’s why Richard’s browsewrap recommendation is so good, it increases the website owner’s control of how potential legal actions move forward.
Now this certainly isn’t to say that you install a browser app agreement and you’re in the clear. Rather we should think of this as another way to further reduce your legal risk and/or the amount of risk concerning website accessibility. There are so many more details that come along with this to creating an effective browser app agreement. We could spend hours talking about the different things that you need to know, but the important take away here is that a browser app agreement can be an effective means of reducing your risk.
Richard: That’s right. And I’ll say without getting technical, but the key to a browsewrap is making sure that the notice is placed in such a way that a person using the screen reader will encounter it early in the process of reading the web page. What that means technically is something that technical people have to advise you on, but the general goal is that someone who is using the screen reader will encounter the browser app notice very early.
Kris: I mean that’s a really, really good tip in furthering risk reduction. Can you share another best practice for listeners for reducing their risk of getting one of these demand letters?
Richard: I’ve really only got one other best practice and that’s to make your website accessible. But there is a special way to do this…or to approach it. The plaintiff’s law firms that file these lawsuits; they use what are called software scanning tools to actually look at a website using software that will produce a report of everything that it thinks is wrong with the website. These scanning tools are not particularly accurate, but if you start by fixing the things that a software tool shows, then in some sense you’ve made your website invisible to the plaintiffs. Because if they’re using the same tool and they run it against your website, you will have fixed the only things they’re looking for.
Now sometimes that means that you fix some things that weren’t actually broken because these website scanning tools have false positives. And it also doesn’t mean that you’re finished because there can be lots of accessibility problems, including very important accessibility problems that these software tools don’t reveal. But if you’re going to be making your website accessible over time, which is usually the case, then start with the things the software shows because those are things that if you eliminate them, they most reduce your risk of a lawsuit. And then move on to the more, often more difficult underlying problems.
I can give you an analogy. For many years we’ve had Title III ADA litigation about businesses that were not physically accessible. So usually someone with a wheelchair couldn’t get into the business or couldn’t get around. And for all that time I advised my clients if you’re going to fix your business so that it’s accessible, start by fixing the accessible parking spaces because that’s the first thing that anybody sees. And a lot of the plaintiffs…if the parking looks good they move on to some other business that doesn’t have good parking. Now that doesn’t mean you’ve made your business accessible, but it means that you’ve done one thing that helps with litigation. Fixing what the software tools show you are the same thing. It doesn’t make your website accessible, but it really reduces your risk of lawsuits.
Kris: I love that analogy; it’s such a good one. As you’re talking, when I’m thinking of software tools I think of the favorite plaintiff’s automated scan for accessibility I think of the Wave tool. And WAVE is a great way to get an idea of some of the accessibility issues on your website that it may have. And plaintiffs’ law firms for sure use Wave. It’s always best practice to get your WAVE errors down to zero, but it’s also important to know with any automated checker, not just WAVE, but anyone. You can take all of the best automated checkers and they themselves will tell you that they can only catch about 1/3 of accessibility issues on your website. Any that’s just because some errors cannot be caught with automatic scans, it takes someone manually looking at your website.
So again, we’re back here to this theme of there’s another thing that you can put in your favorites, another card that you can stack the deck with to reduce your legal risk, but you still need to commit to accessibility and that’s going to involve a real effort beyond risk reduction. Richard, let’s talk about the lawsuits themselves. When I’ve looked over lawsuits filed, I increasingly see plaintiffs’ lawyers citing to WCAG 2.1. But I’ve yet to see any claims that are actually…that aren’t based in 2.0 AA. And for those of you who are unfamiliar with WCAG, it stands for the Web Content Accessibility Guidelines. These are standards for accessibility that are put out by the World Wide Web consortium, the W3C.
Think of these as technical standards, they are not the law but they are something that is commonly referenced when deciding whether a website is accessible in court. It’s best practice if you can adhere and conform to WCAG. And so what I’m talking about is there are two different versions. There’s a 2.1 and there’s a 2.0. And courts have frequently referenced the 2.0; I have not seen them reference the 2.1. But what I am increasingly seeing is plaintiffs’ lawyers that are citing it to 2.1 in their claims that they send out. So what I’m asking Richard now is if he’s seen any citation to what would be considered a 2.1 update. So have you seen that Richard?
Richard: I am seeing demand letters based on WCAG 2.1 and I’m sure some lawsuits have been filed. This is going to probably take awhile. The WCAG 2.0 standard was adopted back in 2005 or 2006, it’s been around a long time and there are many, many settlements of these cases that use it as the standard. But, it’s important to remember there is no official ADA standard for website accessibility. We tend to use WCAG 2.0 AA as a standard because it’s been used a lot in the past. And with 2.1 AA, which just came into effect last June, it’s likely to take over as a standard.
But at the end of the day, the question is always going to be can a person with a disability use your website? And that is can they take advantage of some of the goods and services that the website offers? In some cases, WCAG compliance is not necessary to achieve usability. It’s a very technical standard and there are things you can do wrong which really may not matter. On the other hand, there are cases where WCAG 2.0 or 2.1 AA isn’t enough. In fact there’s a WCAG 2.1 AAA that is very hard to achieve, but is necessary for some disabilities. So WCAG 2.0 or 2.1 AA is a really good guide for accessibility. But at the end of the day, the question is, “Can people with disabilities use my website?” To buy the stuff I’m selling or to buy the services I’m selling or whatever the website is for. Because technical compliance with any standard doesn’t matter if the website is not usable.
Kris: And that is a critical point that I want to highlight because conformance with WCAG is always a best practice, but actual usability is paramount here. You want to make sure that your website is practically accessible. Sometimes maybe you think you hit all of the points on WCAG, but you don’t end up doing it or maybe there’s something that just…for whatever reason there’s a bug. Or maybe you’ve got everything coded correctly but it’s not performing. Whatever the case may be, this is why it’s a great idea to test your website. Test your primary user flow.
So for example, your registration, your product selection, your cart, your checkout…make sure that someone can actually use your website. Do it with different screen readers, use different browsers, different devices. This is why it’s good to test and this is something that you can put in your accessibility policy to say, “Hey, we’re genuinely committed. These are some of the steps we’ve taken to make sure that our website is accessible. Not just with these standards, these technical standards, but for actual real users. We want to make sure there are no barriers, no obstacles to using our website.”
So that is a really, really good point that I think everything…actually it’s overlooked a lot and I usually get hyper focused on a WCAG, but really, what everyone has to remember is WCAG is not the law, accessibility is. So you have to make your website fully accessible, make sure those barriers and obstacles aren’t there.
Richard, we need to wrap up now, but before we go…some people out there want to see if there’s an easy way out of this, right? You start hearing this podcast…it might sound overwhelming if you haven’t read about, researched accessibility before. One question, just a quick question. Is there an easy way to get in compliance and avoid a lawsuit?
Richard: There’s not. There’s really no easy way out because the only thing that works in the long run, in terms of litigation avoidance and in terms of customer service is having an accessible website. And often having a successful website is complicated and expensive. But what you can do that doesn’t cost a fortune is develop a plan that starts with the things that are most likely to limit litigation. And those things, as I said, are generally pretty easy to implement and relatively inexpensive. And then move on to a long range plan to make your website completely accessible and to maintain its accessibility.
Because websites change and every change is a possible step into inaccessibility. But remember, that can be a long range plan. So instead of getting overwhelmed by the magnitude of where you need to be in 18 months or 2 years, start with here’s what I can do tomorrow. Here’s what I can do the day after that. Here’s what my budget permits me to do in the next few months. Take it a step at a time and you’ll end up both reducing your litigation risk pretty quickly and in the long term serving your customers by making your website accessible to people who have disabilities.
Kris: And that is a perfect recommendation to end on. Richard, first of all, thank you for being on the podcast today. I’m sure that there are many people that would like to get in contact with you. What’s the best way to reach you? Where can people find you on the web?
Richard: You can find me on the web at my blog, which is accessdefense, that’s all one word, so AccessDefense.com. You can also go to my law firm website, huey.com. That’s Huey, as in baby Huey, the giant cartoon duck. Either website, either my blog or my website will have all my contact information. I do respond to every call or email that I get. Or if it’s too much trouble to go to the internet, you can just remember my email address which is email@example.com. And, as I said, I respond to every email and I would be happy to hear from anyone who is concerned with their website and accessibility and interested in reducing their litigation risk.
Kris: And I’m going to make sure that those links and your email as well is in the show’s notes. So if you look in the show notes, you’ll be able to find those URLs and get to Richard through there. Richard, again thank you so much and we’ll talk to you soon.
Richard: Thanks, my pleasure.
Kris: And now I’m back, I’m recording after the fact. That was the best podcast, there is not a podcast that is going to rival that. This is the best information on website accessibility. Richard is a leading ADA and FHA defense attorney. He is practicing this stuff on a regular basis, so the best information you’re going to find…such a great guest.
And I wanted to add that Richard and I talked after the podcast and we have planned to do at least one webinar, where it’s a Q & A session, where you can go on the webinar and ask us questions and we’ll answer them live. So if you want to find out when the next webinar is, subscribe to Accessible.org. All you have to do is go to Accessible.org and it’s very easy to subscribe. Another thing, if you need help with website accessibility, go to Accessible.org, email me at firstname.lastname@example.org, I spell my name with a K and I will get back to you very soon.
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