ADA Compliance: What’s the Basic Defense Strategy?

Written by: Timothy Stephen Springer

This is post #24 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).


“The best way to avoid and minimize exposure to serial ADA claims is to have accessible buildings and websites, and when that fails, have someone to hold responsible. ”

The above quote is from a paper developed for the International Franchise Association 52nd Annual Legal Symposium. It’s title is How to Best Avoid or Defend an ADA Drive By Lawsuit. If you are interested in the mechanics of how these suits play out it’s great. The quote gives you the basic approach and strategy here which is (i) make it accessible, and (ii) have a method for holding others accountable if it’s not.

The Strategy

  • We implement accessibility directly in the site. Widgets and overlays don’t meet the legal and regulatory requirements. The only safe way to do this is to actually implement accessibility in the underlying code.
  • We implement accessibility to the level of WCAG 2.1 AA. That’s a widely accepted baseline for ensuring accessibility for the vast majority of users.
  • We provide a method for specific users to report back issues to us.
    • We receive and respond to those issues reports in a timely and effective fashion.
    • Based on the issues, we take prompt action to (i) fix the issue if it is caused by a bug in our code or, (ii) address that issue with an alternative approach—auxiliary aid or service in the ADA argot—to ensure equivalent access
  • We provide a method for people with disabilities to receive support for any issues they may have with the site
  • We provide a public page detailing our accessibility policy, approach, and plan for future years
  • Through ongoing monitoring, training, and internal policies we demonstrate that we are controlling for the ongoing accessibility of the site
  • Through annual audits, we formally test and validate the full and equal access of the site and our approach with an independent third party
    • As part of that approach, we include user testing by individuals that are blind and visually impaired
  • We include proper contractual requirements for contract developers, IT providers, software providers—anyone we buy technology from—asking them to warrant the ADA compliance of their solutions

What Does All That Get Us?

  • If the plaintiff claims a specific barrier, we will be able to respond forcefully with contemporaneous records that such a barrier was not, in fact, present.
    • We monitor the development process, content creation process, and live sites for accessibility.
    • We have records related to testing accessibility as part of the process.
    • We have a third party that validates the site annually.
    • We have a method for reporting any issues that we can demonstrate the plaintiff didn’t use.
  • Demonstrate sufficient and extensive policies, practices, and procedures to ensure accessibility issues are not introduced into the system in the future.
    • Demonstrate that the policies and procedures exist.
    • Show a track record of their implementation.
    • Show validation of them by a third party.
  • Demonstrate a clear method of allowing users with disabilities to request additional support or help as it relates to the accessibility of the site.
    • Raises the question of why the plaintiff didn’t contact us for help or support at any point if their barriers were egregious?
  • Warrants and demonstrate an ongoing desire to continue to make the systems accessible and broadly usable to individuals with disabilities.
    • Conform to the requirements of the ADA on an ongoing basis.
    • Ensure full and equal access to the site for people with disabilities.
    • Commit to ongoing conformance with the relevant standards.
  • Ensure that contracts with technology vendors include warranties and representations of compliance and indemnification approaches with those.