Twenty-five years ago, the Americans with Disabilities Act (ADA) was signed into law, prohibiting discrimination based on disability. Most retailers understand that physical spaces must conform to specific design requirements for accessibility under the ADA, but in recent years the scope of the law is being interpreted more broadly. The argument has effectively been made that online services constitute “public accommodations.” The Department of Justice’s (DoJ) policy on website accessibility states that Title III of the ADA addresses businesses that are places of public accommodation, and as a result, the effective communication rule applies to entities that use the internet as a means of communication for their goods or services because they must be prepared to present these communications through an accessible medium.
An increasing number of retailers, both online and brick and mortar, are facing lawsuits relating to the accessibility of their digital properties – including websites and mobile applications. The application of accessibility principles to digital business channels – a concept broadly known as digital accessibility – is now widely seen as a critical part of overall accessibility risk management.
Retailers such as Amazon, CVS, eBay, Staples, Target, Ticketmaster and others have been sued by or are engaged in settlements with advocacy groups including the National Federation of the Blind (NFB), American Foundation for the Blind (AFB) and American Council of the Blind (ACB).
In addition to public-facing systems, internal systems such as portals, intranets, development environments, as well as internal HR systems and external job posting and application systems also pose potential risk under Title I of the ADA. These systems are often at the core of people both getting a job and successfully performing their job. If they are inaccessible, arguments have been made that an organization is discriminating against employees with disabilities.
The Cost of Litigation
So, what is the cost of litigation, settlements and required retrofitting to conform to settlements relating to ADA?
The cost to settle a class action lawsuit – including damages and injunctive costs – can easily top $10 million. Failure to comply with relevant legislation may also result in significant punitive fines and other substantial financial losses.
This doesn’t include the negative brand connotations for a retailer that is actively barring people with disabilities from using their systems. Plaintiffs will try cases both in the courts and in the press.
The vast majority of cases do not go to trial and are settled under structured negotiations. In the case of class action suits these negotiations can occur before or after certification of the class. Generally the later in the process the defendant seeks to settle the more restrictive the technical requirements applied and the more aggressive the timeline for implementation.
The exact requirements for compliance vary from case to case but the vast majority of recent case settlements require Web Content Accessibility Guidelines (WCAG) 2.0 Level AA conformance. This set of requirements is more restrictive than what most organizations choose to conform to if they address accessibility in a proactive fashion. So, in addition to the legal and settlement costs, organizations face a higher burden of compliance by reacting to suits versus proactively defining a level of compliance.
Interested in learning more about the technical requirements? I’ve posted another blog today – ADA and the Web for Retailers – Technical Requirements – that explains more about what retailers can do to conform to the ADA, specifically the Title III public accommodations requirements.
It’s Not Just About Avoiding Risk
Not only does compliance help avoid the risk of litigation and bad publicity, it also helps online retailers increase market share by both ensuring equal access to their products and services and improving search engine optimization (SEO). This article from Below the Fold explains how the practice of designing a site based on WCAG guidelines and optimizing SEO can overlap.
According to the 2010 U.S. Census Bureau there are approximately 56.7 million people living in the United States that have some type of disability (18.7% of the total population). They make up a significant market of consumers, representing more than $200 billion in discretionary spending and spurring technological innovation and entrepreneurship. When an individual with a visual, hearing, mobility or cognitive impairment cannot access your site properly it can be the difference between making and losing a sale. Having an accessible website allows and welcomes the buying power of people with disabilities.
Want to Learn More?
Access the resources from our free, on-demand webinar:
Presented by Tim Springer (CEO of Level Access) and Minh Vu (Partner, Seyfarth Shaw LLP), the webinar will explore the current requirements, expected changes, recent lawsuits and settlements, and outline a phased approach to mitigating legal risk, enhancing users experience, and monitoring ongoing compliance.