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Yes, Your Digitally Native Brand Really is at Risk of Web Accessibility Litigation

Jun 08 '18

Last week, I was speaking with a prospective client, who is a marketing director at a trendy and successful digital jewelry brand with headquarters in New York.

She reached out to Third & Grove because colleagues had mentioned that law firm in Manhattan was using the ad in the New York Times Style section as a guide to which digital retailers to sue for lack of website accessibility compliance.

It’s a devious tactic, and companies should be afraid of lawsuits over website accessibility compliance; after all, they hit an all-time high in 2017, and this year is on track to be an equally robust year.

Third & Grove isn’t a law firm, and we aren’t in a position to give legal advice.  But it is important for digital merchants to understand the rapidly-changing legal landscape that is now putting brands at risk of being sued over website accessibility.

Here’s a guide to assessing your own risk of being sued:

What exactly is website accessibility compliance?

Website accessibility compliance means that your website meets the WCAG 2.0 AA standard.

In 1990, President Bush signed the Americans with Disabilities Act (ADA) into law, prohibiting discrimination based on disability and setting accessibility requirements for access to public spaces for disabled persons.

Over the last decade, subsequent legislation involving Target.com, Hotels.com, and Expedia.com (among others) has considerably expanded the scope of ADA compliance to include website accessibility.

As the law extended into the digital realm, a set of clear standards became necessary. Enter the W3C.

Separately, in 1999, the World Wide Web Consortium (W3C) created Web Content Accessibility Guidelines (WCAG 2.0) to set international standards. (You may have also have seen references to Section 508 compliance. Section 508 refers to a part of the Amendment to the Rehabilitation Act of 1973 that requires federal agencies to make information technology accessible to those with disabilities. WCAG 2.0 is a more modern and international standard for accessibility and the universal standard for website accessibility.)

The WCAG specifies three levels of compliance:

  1. A (must support)

  2. AA (should support)

  3. AAA (may support).

In general, you need to target AA-level compliance.

Whew! OK, the hard stuff is over. I promise.

Let’s turn to the good stuff: Am I going to get sued?

2017 was the most litigious year ever for website accessibility lawsuits, and 2018 is on track to set a new record

If you have any doubts that website accessibility compliance is a real risk for medium-sized merchants, look no further than the sobering statistics shared by Seyfarth and Shaw: Nearly one thousand lawsuits were filed in 2017 alone, a staggering number when you consider the first website accessibility trial ever took place in that same year and there are perhaps only 150,000 business in the US that have enough revenue to be worth the effort of an expensive legal action.

In that first trial, the judge ordered grocery chain, Winn Dixie, to spend $250,000 to conform to the AA standard. And since the current administration canceled the DOJ’s plan to issue standardized legal guidance on website accessibility, expect the situation to get more complex: “The lack of clear rules will lead to more litigation and inconsistent judicially-made law” (according to Seyfarth and Shaw).

While the lion’s share of lawsuits are being filed in New York and Florida, businesses in all states are at risk because the laws are federal.

But we don’t have a physical store so we are fine, right?

Sadly, no.

Until last year, the scope of website accessibility lawsuits was generally limited to websites for brands that also had physical locations. That all changed last year when several lawsuits successfully argued that compliance was required for digitally-native brands.

If you run a digital brand on Shopify (or any commerce platform) you need to comply with WCAG 2.0 AA guidelines, regardless of whether you have any brick and mortar outlets.

Given that the Trump administration cancelled the planned DOJ guidelines, that web accessibility lawsuits are generally easy to bring (all the information the attorney needs is available for free by going to your website), and that case law is greatly expanding the scope of culpability, every medium or large brand should expect to be the target of a lawsuit in the next five years.

Who are the most common targets?

There doesn't appear to be any kind of focus around any particular product, sector, or model.

Remember, this isn’t a government regulator going after private businesses and filing suit. It’s private law firms bringing action against merchants.

Therefore, the best indicator of risk may be size: You simply need to hit a certain revenue (or appear to) to be worth the effort. How can an attorney tell your revenue if you are a private business?

Easy! Go to LinkedIn, type in the company name, take the total number of employees, and multiply that by average revenue per employee for that industry.

Here’s an example: Paypal had revenues of about $13 billion dollars in 2017 and has about 22,000 employees. The average revenue per employee for the technology sector is $489k, and the PayPal average revenue per employee isn’t far off at roughly $590k. It’s not a perfect predictor but an easy way to get pretty close to the real number (when it’s not known).

And you may want to think twice about advertising in the Style section of the New York Times. :wink:

What to do next?

Don’t panic!

Don’t start with a big investment in compliance—do a low-cost audit. Hire an outside firm to identify your risk areas, and use the audit as an exercise in understanding website accessibility. Target WCAG 2.0 level AA.

Carefully review the findings, balancing structural changes to your website (to correct code defects), workflow changes to your editorial processes (to ensure things like images get proper alt text when products and content are added by your team), and UX changes to reduce the cost of compliance. (For example, removing a video that isn’t really driving conversion).

Third & Grove does work with many clients on website accessibility compliance audits and refinements. But we not a law firm, and are not providing legal advice. You should check with your own counsel for any legal questions. Contact us for help with website accessibility.