The Beach Boys believed “if everybody had an ocean, across the USA, then everybody’d be surfin’, like Californi-a.” Fast forward 50 years, there has definitely been a rising tide of enthusiasm about surfing, but it’s just not the enjoyable surfing experience the Beach Boys crooned about.
Recently, there has been a rise in frivolous “website surf-by lawsuits” alleging website inaccessibility violations based on Title III of the American with Disabilities Act (“ADA”). Title III prohibits discrimination on the basis of disability in places of public accommodation, requiring that such places be accessible to those with disabilities. Surf-by lawsuits arise when individuals systematically surf the internet looking for vulnerable business websites that are inaccessible or not fully accessible to people with disabilities. Next, the individuals typically send a letter demanding settlement for the alleged violations in lieu of being taken to court where the costs of litigation may be higher than payment of the settlement. Depending on the jurisdiction, website litigation settlements could range from $4,000 to $20,000.
Exacerbating the issue, there is an absence of formal government guidelines on ADA website compliance to instruct private businesses on how to ensure their websites comply with the ADA. The absence of specific government guidelines or a consensus among the courts on how ADA compliance translates to the web, coupled with a cultural trend toward a more web-based marketplace, has left a wide berth for potential litigation. This litigation loophole is why we counsel clients to be proactive and mitigate their risks by implementing a plan or hiring experts to make their website ADA accessible.
For example, companies like Crystal Clear Digital Marketing have been building and refining digital marketing tools and strategies to keep businesses profitable, including developing ADA compliant add-on software, which provides a high level of ADA compliance for its clients.
“Website accessibility standards are not set in stone, and the standards are ever-evolving. The standard for today may not be the standard for tomorrow,” said Joe Amaral, Chief Operating Officer for Crystal Clear Digital Marketing. “This is why compliance requires ongoing monitoring. ADA website compliance is a combination of technology and human evaluation, with the human element constantly reviewing current standards and making updates as necessary.”
Businesses could also mitigate their risks by reviewing the recommendations offered in the Web Content Accessibility Guidelines, or WCAG 2.0 AA, and develop a plan to integrate these recommendations into their existing website accessibility policy.
Until this wave of surf-by lawsuits alleging website inaccessibility violations breaks, no surfboard can navigate these tricky waters without hiring an expert and legal counsel to help you lessen the risk of your company being targeted by these surf-by plaintiffs and their legal representatives. Because it’s not a matter of if a plaintiff comes across your website, it’s a matter of when, and when they do, you will get sued. For more information on ADA website compliance, contact info@byrdadatto.com.
