The year 2022 began with the bombshell with organizations across the United States receiving ADA demand letters. The organizations in question had no idea what to do and inadvertently paid a hefty penalty for their noncompliance. It’s no surprise that most of the organizations that received a demand letter were caught unaware about new regulations surrounding accessibility.
What does this mean for organizations that haven’t received a letter? One thing is clear, ignorance is not bliss! The U.S Department of Justice, which enforces ADA, has laid down laws around digital content for websites that service public accommodation or interface with a public audience. So, what is a demand letter? If you’ve just received one such letter or are anxious of being served, here’s everything you need to know.
What is a demand letter in the digital accessibility world?
An ADA demand letter is a letter to an organization that alleges that its digital property (public-facing website or app) does not comply with the American Disabilities Act (ADA). It is usually sent to businesses who do not ensure equal access according to the Web Content Accessibility Guidelines (WCAG) 2.1.
The Americans with Disabilities Act (ADA)
The Americans with Disabilities Act (ADA) was signed into law in 1990. Title Three of the ADA prohibits discrimination against individuals with disabilities in places of public accommodation, including transportation, jobs, and schools.
The ADA also requires businesses to make online content accessible to the blind, deaf, and to those requiring assistive devices to navigate a website. Businesses who do not comply with these requirements are at serious legal risk.
Rise in ADA Digital Accessibility lawsuits
ADA-related lawsuits have skyrocketed with nearly 4000 cases filed in 2021, a 15 percent increase from 2020.
What happens after you receive an ADA Demand letter?
Most of the time, demand letters lead to a settlement. Only a small number go into litigation. However, an organization cannot claim to be safe after settlement. It can be sued multiple times if it does not implement the right practices, policies, and procedures.
The Anatomy of an ADA Demand letter
The argument in a demand letter is based on discrimination against people with disabilities, intentional, continuous and ongoing discrimination. The letter states that the discrimination is a result of policies, procedures, and practices followed by the organization that does not support full and equal access. Notice of breach of the relevant state laws such as California’s Unruh Civil Rights Act (UCRA) and Pennsylvania Human Relations Act (PHRA) is highlighted.
Origin of ADA Demand letters
ADA demand letters are filed by mass-filing attorneys, targeted lawsuits sponsored by advocacy groups, and individuals with disabilities. The demand letters seek injunctive relief, damages under the relevant state laws, and legal fee reimbursement.
A generic demand letter contains reference to ADA and state-specific laws such as California’s Unruh Act, the attorney retained by the plaintiff, accessibility issues discovered by testing with a free scanning tool (WebAIM’s WAVE), specific charges of discrimination against people with disabilities, settlement terms, and the time frame to reply to the demand.
What an organization should do to eliminate the risk of litigation is become accessible. This can be achieved by complying with the latest Web Content Accessibility Guidelines (WCAG 2.1).
What to do if you receive an ADA Demand letter?
Step 1. Engage an Accessibility partner
If your organization receives a demand letter, do not panic. The first step is to hire an accessibility partner who has an expert understanding of digital compliance requirements.
The accessibility partner will help to review your demand letter to make sure the accessibility standards cited are applicable to your website or industry. He will help to draft and publish a WCAG conformance statement on your website.
Step 2. Conduct a comprehensive audit
The next step is to conduct a thorough audit of your website and digital assets and document it at every step. The accessibility issues have to repaired, tested and verified periodically.
Step 3. Maintain compliance
Digital accessibility compliance is not a one-time event. Every organization must train its employees to ensure everyone understands that accessibility is the core part of user experience. The business must also stay up-to-date with the latest updates to compliance standards.
Companies like codemantra provide digital accessibility solutions and services to minimize legal risk and ensure compliance with the latest accessibility standards and guidelines.
Things to know about ADA Demand letters
Agencies and organizations have to know a few things about ADA Demand letters. It is critical to hire legal counsel with experience in ADA settlements. The majority of cases are resolved at the negotiating table, with only a few reaching the courts.
Existing customers file lawsuits against the companies providing services. In two cases involving Morgan Stanley and TD Ameritrade, the plaintiffs who were visually impaired alleged that the company’s websites were inaccessible to screen reader technology.
Digital accessibility lawsuits correlate with automated testing results. Most of the lawsuits cite the accessibility issues caught by free website evaluation tools such as WebAIM’s WAVE.
Organizations can run their own automated WCAG testing and fix these issues. The organization can also control its own compliance timeline. A one to two-year timeline for compliance with WCAG 2.1 AA standards is extremely difficult. On the other hand, the organization can negotiate to bring key areas of their website into compliance in a short term and a longer remediation period for full compliance.
Organizations can employ a three-tiered training approach involving their development and content teams. Lastly, user testing by users with disabilities throughout the development and testing process is extremely important.
Reason for the increase in website accessibility- related ADA demand letters
Some of the reasons for the increase in ADA demand letters are predatory litigation by a small number of plaintiff’s firms and hard-to-refuse settlement offers that force the defendants to accept the demand early on in the process to avoid a lengthy litigation.
Accessible website tactics:
Companies can follow a few accessible website tactics such as choosing a suitable Content Management System (CMS) or Learning Management System (LMS) that supports accessibility, use of proper heading levels, alt text to images, tagged PDFs, use ARIA roles and landmarks only when necessary, ensure the website content can be accessed with a keyboard in a logical way, make dynamic content accessible to screen reader users, website testing on mobile devices, and question vendors about the accessibility of their products.
The global pandemic has influenced the surge in digital accessibility lawsuits and demands. It is safe to say that, even a return to “normalcy” will not reduce the number of lawsuits filed and the demand letters. Businesses must recognize the importance of accessibility and provide an equal online experience for all. The perspective must shift from lawsuit avoidance to sound business sense.