Navigating Web Accessibility Litigation: Advice from a General Counsel
Aug 28, 2023
Note: All content in this blog post attributed to Vince Castiglione reflects his personal views and opinions only and is not indicative of the views or opinions of his current or previous employers.
As the velocity of web accessibility lawsuits continues to increase, more and more organizations are facing the consequences of non-compliance with the Americans with Disabilities Act (ADA) and other anti-discrimination laws. For corporate general counsel, determining if, and how, to respond to legal action in this area can be challenging. But with a thoughtful and strategic approach, counsel can not only reach a favorable outcome, but also turn lawsuits and accessibility complaints into a springboard for company-wide efforts to ensure long-term access for all.
To better understand how general counsel can navigate web accessibility litigation effectively and mitigate future risk, our Chief Innovation Officer Karl Groves spoke with Vince Castiglione, an in-house attorney with consumer products companies since 2006. Drawing on his personal experience, Vince shared practical guidance to help other in-house counsel address legal concerns surrounding digital accessibility and champion inclusion within—and beyond—their organizations.
For more insight on compliance from Castiglione and others, access our on-demand webinar: Navigating Digital Accessibility Compliance: Midyear Legal Trends.
Karl Groves: You’ve mentioned that, for some organizations, web accessibility litigation can be a “wake-up call.” Why do you say that?
Vince Castiglione: Companies don’t make an intentional decision to turn away consumers. It doesn’t make sense for any for-profit business to exclude potential customers. So, I consider web accessibility lawsuits a wake-up call. Once you’re made aware of accessibility barriers, you begin to realize just how broad some of the underlying technical issues are, and you gain clarity on what you need to do as an organization to resolve them.
Groves: What advice would you give general counsel at an organization that has just received a digital accessibility lawsuit?
Castiglione: When a lawsuit lands on their desk, the natural reaction of most lawyers is to start pounding the table. But sometimes, pounding the table is the worst thing you can do. If the issue is valid, undue defensiveness signals a lack of empathy and awareness on behalf of your organization. If your company truly aims to serve all customers, my advice is, thank the plaintiff for bringing the issue to your attention, and then move on to addressing their concerns.
Acknowledge that your organization may need to address legitimate concerns and work on them to improve accessibility. When you’re transparent about the actions you’re taking toward compliance, people are less inclined to pursue legal action against the organization, because they know you’re not ignoring accessibility barriers.
But, maintaining momentum is key. Compliance isn’t “one-and-done”—it’s an ongoing process, and to make continued progress, you need to build internal knowledge. I recommend making accessibility training a requirement for all employees and building it into onboarding for new employees, especially in the creative departments.
Groves: What process does an in-house legal counsel need to take in order to successfully navigate web accessibility litigation? Who do they need to work with?
Castiglione: When navigating lawsuits, an in-house counsel needs to know where their limitations lie and bring in the technical help and expertise they need. From there, you can build up a core internal team focused on digital accessibility. You don’t know what you don’t know, so it’s crucial to bring together stakeholders from different levels and teams across the organization.
Every company has different internal processes. At matrixed organizations, addressing digital accessibility lawsuits involves bringing in multiple departments. Marketing is generally responsible for published content, but you’ll likely also need to work with the IT teams that manage your relationships with external developers and contractors. So, the first step is getting everyone on the same page.
Groves: Are there any challenges legal staff should be prepared to overcome as they work to bring their organizations into compliance with accessibility requirements?
Castiglione: Lawyers may receive pushback that their company doesn’t have the budget for digital accessibility. Well, you have to make room in the budget for it, just like you would with any other priority that might have caught your business unaware. To prove this point, you could conduct a return-on-investment analysis, which many organizations do to evaluate their spending on other compliance obligations. With accessibility, you’ll want to consider not only what web accessibility litigation itself will cost, but also the reputational damage it can bring to a company, and the potential revenue the organization may be missing out on by excluding people with disabilities, along with, perhaps, their friends and families.
Groves: How can corporate counsel be a champion for accessibility, both within and outside of their organizations?
Castiglione: Don’t end your conversations with, “because the law says so”! Advocating for accessibility compliance in a business environment means translating legal obligations into practical terms that people can understand. You could explain that accessibility needs to be given the same level of consideration as any other compliance area, like privacy or data security. Ultimately, we’re talking about more than risk and compliance—we’re talking about quality of access for your customers and potential customers.
You can also tie accessibility to business objectives, like advancing diversity, equity, and inclusion (DEI) initiatives. In the U.S. especially, companies are very focused on DEI, and accessibility needs to be part of that goal. It’s really about DEIA, not just DEI.
When it comes to championing accessibility externally, lawyers need to keep talking to one another. Many of us are part of bar associations and counsel organizations where we educate and train each other. The more we discuss our experiences with accessibility and its importance, the more effectively we can influence change.
About Vince Castiglione
Vincent (“Vince”) Castiglione began practicing law in 1989 and has served as the in-house general counsel at consumer products companies since 2006. He is currently the Vice President, General Counsel, and Secretary for the U.S., Canada, and Australia businesses of Tata Consumer Products (TCP). Outside of law practice, Vince has been active with the Association of Corporate Counsel (ACC), having been Chapter President for the New York City Chapter and awarded the Association’s Robert I. Townsend, Jr. Member of the Year Award in 2013.
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