Got sued under the ADA for inaccessibility? – Part 2

Here is what you can expect. Part 2 of a two-part article

Read Part 1 of this article here about recouping costs for accessibility lawsuits when others are at fault.

This article is not legal advice. This is a general opinion article and should not be relied upon for any legal situation. Always consult an attorney who specializes in accessibility for your legal issues.

There have been many, many articles about accessibility and lawsuits. There have been over 7500 of them filed in the last three years, according to a Usablenet.com report. “Avoid getting sued,” vendors scream in sponsored ads when you search on Google for anything related to W3C or accessibility.

Everyone knows getting sued is terrible. But do all the accessibility stakeholders in your organization understand at a detailed level the impact on their lives an accessibility lawsuit will have? If it were just money, it would be one thing (and the financial side of this litigation is addressed in Part 1 of this article). Unless you’ve been in the bowels of a corporate legal suit, you may not be aware of the process and how litigation can turn in to a soul, morale, and time-sucking hole that it sometimes feels like you will never escape. It is crucial for people making organizational decisions that increase the risk of potential discrimination litigation to understand how much that suit will cost, both financially and in terms of lost opportunity and product feature reprioritization impact.

Here goes: the life of the average accessibility lawsuit.

First, the plaintiffs’ lawyers generally send a demand letter to the legal department. Accessibility stakeholders will receive the first of many invites to meet with the internal legal team to discuss a response. This is the “shot across the bow” where the plaintiff’s lawyers try to make a quick buck rather than have to go through the hassle of actually filing formal litigation. It’s difficult to know exactly how many cases resolve at this level with a quick payoff and a promise to be accessible in the future. The promise of future accessibility is only rarely followed up on by the plaintiffs. All of the dealings in this initial phase are always protected by confidentiality agreements.

Your organization gets served with the complaint. This can happen in different ways. It might go to your legal team directly, but sometimes, the plaintiffs’ legal team serves whoever is at the headquarters’ reception desk. That is an intentional psychological litigation warfare tactic because it starts the rumor mill, and employees who hear about the suit may start questioning corporate values.

You need to turn your (likely very non-technical) legal team into accessibility experts, literally overnight. They can’t adequately participate in your defense if they don’t understand accessibility at a very detailed level.

Outside counsel will likely be retained. If your organization retains outside counsel that specializes in accessibility litigation, no additional training will be required. However, these individuals/firms are typically costly — Prices in the $600 to $700 per hour range are common. If your organization retains standard litigation defense counsel, then they will require the same training (at your organization’s expense, but possibly a lower per-hour cost) as your internal legal team.

Expert witnesses will likely be retained. They won’t require training, but there will be a metric bleep-ton of meetings to take both the outside counsel and the experts through the organization’s accessibility process and artifacts. These individuals/firms are also costly.

All evidence related to the lawsuit must be preserved. Once your organization has been sued, you are obligated to preserve any evidence related to the lawsuit. This includes every file, email, and all messages from tools like Slack, MS Teams, and your mobile device messaging system of choice. If you’ve run one of those “check your accessibility here for free” tools, that becomes evidence. If you include personal information in a slack channel while discussing accessibility results, too bad, that is part of the disclosure as well. Proof that evidence has been destroyed or evidence that is claimed not to exist and later uncovered is the kiss of death in these cases because it is indicative that more digging should be done. The following events will likely occur:

• Your IT department will freeze your email and all files associated with the accessibility lawsuit.
• Backups may have to be searched. Plaintiff’s attorneys may use the Wayback machine to produce copies of past inaccessible websites.
• If you’ve talked about accessibility or disabilities in your personal Facebook, LinkedIn, or email communications, you may be required to produce those as well. That means reviewing months or years of these communications to decide if they are relevant or not.
• If you text a friend or significant other about the cr@ppy day you had because people at your organization refuse to listen to you about accessibility, you may be required to produce your private text messages. If you appear on a YouTube video asking a question about accessibility at a conference or meet-up, that video may be subpoenaed.
• When people associated with the lawsuit leave your organization, forget about shutting down their accounts or reusing their equipment — everything has to remain untouched in case it contains evidence relevant to the case.

Every written and recorded personal and business conversation for the duration of the lawsuit is impacted. This can last for YEARS.The onerous nature of litigation document production is why digital document retention policies that are automatically enforced are so important.

This is what “anything you say can and will be used in a court of law” really means.

The document production process creates a lot of self second-guessing and wasted time between what you are allowed to say and what you really want to say in future accessibility communications until the lawsuit is finally resolved.

• You may decide you need to have a conversation verbally (rather than send an email) with someone who works in an incompatible timezone, which results in delayed decision making.
• Every talk submission and meet-up attendance by an accessibility stakeholder will be scrutinized through the accessibility litigation lens.

Your engineering managers, product owners, and anyone who touched accessibility for the allegedly non-compliant items identified in the lawsuit should plan to spend at least 20 % of their time doing litigation-related work until the case is resolved. This will take months and could take years.It is a peak and valley type of time commitment. Sometimes it is 0 %, sometimes it is 125 % (and usually not at the right time from the business/personal perspective). Litigation discovery is an intensive process, even more so if the lawsuit is a class action. Interrogatories, depositions, responding to document subpoenas, reviewing experts’ reports (both your experts and theirs) will require input from all of these individuals.

There is a super-easy way of reducing your organization’s risk to all of these terrible things — get your products and supporting services/documentation accessible, then keep them accessible. How to do that is well documented, and not just by me.

More than half of the lawsuits in the last three years were filed in 2020.

In a year where the courthouses were closed for 25 % of the year.

You are deluding yourself if you think you are somehow magically exempt from accessibility requirements. You may be at a lower risk of getting sued, but very few organizations are truly exempt!!

Remaining inaccessible is a decision that will cost an organization dearly. And not just in legal costs. Inaccessibility will also:

• Harm your organization’s reputation, especially amongst millennials who value inclusion in an organization above all other corporate values.
• Delay planned new features as accessibility suddenly becomes everyone’s top priority, and no one knows how to do it.