This is post #21 in the ADA Compliance Series, which aims to outline a structure for validating and justifying a claim of “ADA compliance” for a website or other digital system (a few notes and disclaimers on that).
One question we get a lot: can we just fix this and forget it? No, you can’t, and here’s why:
Websites are constantly changing
Modern websites aren’t static. They are constantly changing. Unless you change the way that site is built, and content is deployed to it, it will rapidly fall out of compliance again. Plaintiff’s attorneys are savvy to this point as an excerpt from a recent lawsuit shows:
“Web-based technologies have features and content that are modified on a daily, and in some instances an hourly, basis, and a one time “fix” to an inaccessible website will not cause the website to remain accessible without a corresponding change in corporate policies related to those web-based technologies.”
So, plaintiff’s attorneys are well aware that sites don’t just “stand still” that they are constantly changing. That aligns with the fundamental thing that lawsuits are asking for – changes to the policies, practices, and procedures of the defendant to force accessibility on an ongoing basis.
The ADA requires changes to how you do business
Failing to change how you do business to ensure accessibility on an ongoing basis is defined as discrimination under the ADA. For reference, discrimination includes:
“(ii) a failure to make reasonable modifications in policies, practices, or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities, unless the entity can demonstrate that making such modifications would fundamentally alter the nature of such goods, services, facilities, privileges, advantages, or accommodations;” – 42 U.S.C. § 12182 (b) (2) (A) (ii)
Discrimination is defined, in the law itself, as a failure to change your approach to ensure full and equal access. So, until you actually change your approach, you’re discriminating.
For context you should also be aware that many organizations have been sued or received demand letters multiple times – more than a few well over ten times. The demand letters are settled quietly and never reach the public record. The lawsuits, however, are public information. Since the lawsuits – and their removal – is public record plaintiff attorneys can, and will, cite that in subsequent lawsuits. This one from a recent lawsuit:
“Despite Defendant being a defendant in at least three prior ADA accessibility lawsuits, which likely resulted in confidential settlements that obligated Defendant to remediate the Website, Defendant has made no material changes or improvements to the Website to enable its full use, enjoyment and accessibility for visually disabled persons such as plaintiff. Defendant also has not disclosed to the public any intended audits, changes, or lawsuits to correct the inaccessibility of the Website to visually disabled individuals. When the Website was revisited, it was further revealed that although the Website appeared to have an “accessibility” statement on its home page, that statement provided no alternative means to effectively access and navigate the website, and thus continued to be a barrier to, visually disabled persons, including Plaintiff.”
The plaintiff’s claim then goes on to conclude that this is actually evidence of a failure, by the defendant, to make the kind of reasonable modifications to policies, practices, or procedures that are required by the above portion of the law.
So be aware that the fact you have been sued, and that the suit has been settled is public record. Even if the terms of the settlement are private it only takes a simple Westlaw or PACER search to pull records of all the prior matters you’ve been involved in.
Lawsuits typically seek permanent injunctive relief
The final point to be aware is that the vast majority of ADA lawsuits, settlement agreements and consent decrees seek permanent injunctive relief. The request to the court, in the case of a lawsuit, is not “ask the defendant to make their site compliant” and once it’s compliant we’re good. The request to the court is “force the defendant to make permanent changes to their policies, practices and procedures to ensure ongoing access” to whatever is the object of the lawsuit.
That all aligns with the definition of discrimination cited above that requires reasonable modifications to policies, practices, and procedures to ensure their ongoing access to people with disabilities. The idea is if you don’t change how your organization does things, permanently and substantively, to ensure ongoing access to the relevant products and services that’s discrimination. Compliance with the ADA, then, means you’ve got the controls and systems in place to avoid discrimination in access in the future.
So, it’s not a one time fix issue. It’s something that requires ongoing, substantive change.