Non-compliant sites are vulnerable to lawsuits, but SEOs can help protect them by advocating for accessibility, which can serve both differently-abled audiences as well as your business goals.
Although the gains from enhancing your site’s accessibility may not be obvious, that doesn’t mean it isn’t crucial for your business and your audience. Many businesses have been sued over their sites’ lack of support for differently-abled users — a demographic that may rely on assistive technologies to navigate the web. When sites aren’t accessible, they are not only going to lose out on potential conversions from differently-abled users, but they also become vulnerable to legal action.
In a future article, we’ll take a look at exactly what SEOs can do to improve their clients’ accessibility, but for now, this article will examine the potential penalties businesses might face if they get served with an accessibility lawsuit, who is driving these legal actions, reasons why sites might get sued and how that has changed workflows for businesses and SEOs — all so that search professionals can adequately frame priorities for their clients.
The potential penalties
Title III of the Americans with Disabilities Act (ADA) requires places of public accommodation and commercial facilities to comply with ADA standards. While websites are not specifically mentioned, a judge could rule that websites fall under this regulation. The number of lawsuits that search professionals mentioned in interviews for this article suggests that plaintiffs believe accessibility for websites is guaranteed by law and/or that defendants will simply seek to settle out of court, which seems to be far more common. The maximum civil penalty for a first violation under title III is $75,000, with subsequent violations being capped at $150,000.
The penalties that a business can incur seem to range greatly. “It was a $10K fine,” Jessica, a Minnesota-based SEO who preferred to remain anonymous, told Search Engine Land, adding, “They [the client] were also informed that if they did not fix anything by the time someone checked again, they would be fined $50K no questions asked.”
“[The] total suit was for $50,000 but these legal teams are mostly looking for a settlement,” said Eric Wu, VP of product growth at Honey, referring to a previous client’s case. “In this case, the fine was $200 per person impacted,” he said, noting that fine limits can vary from state to state. “The legal team who filed the lawsuit claimed that 250 people were impacted,” he added.
“There wasn’t a specific fine,” said Jackson Whelan, principal at Terrier Tenacity Design & Marketing, “They were looking for damages which would have been determined in court.” Whelan also noted that the aim of the lawsuit seemed to be getting business owners to settle out of court.
Law firms may be preying on sites with poor accessibility
Businesses might assume that end-users are the ones filing these legal actions, and that they’re far and few between, but marketers who have experienced accessibility lawsuits are pointing to a more business-driven motive.
“I worked with four different bike shops that were sued by the law firm in this article,” said Noah Learner, product director at Two Octobers, “The letters sent to each shop were almost identical in language and content, to the point that, had they not referenced accessibility, our clients would have taken them for spam.”
Pushing for a higher degree of accessibility is a worthy cause, but it seems that there is an industry of lawyers that are treating this issue as an opportunity for a cash grab. “The customer was one of about 50 businesses all sued by the same person in Denver using a law firm out of New Jersey,” Whelan said, “To the best of their knowledge, the person suing them had never been to their restaurant or contacted them to make a purchase or visit,” he added, meaning that this tactic may be adopted by any individual, not just your customers.
“My understanding is that there are specific law firms that work with sight-impaired folks who just scan the internet for sites that are in violation and file a lawsuit,” Wu said, noting that the lawsuit his former client was served with mentioned products in a completely different category than what his client sold. “A lawyer used an automated tool to find ADA issues on the site as part of a class-action lawsuit,” another SEO professional who spoke under the condition of anonymity told Search Engine Land.
The nature of these lawsuits presents an unfortunate conundrum: It seems business owners are largely in favor of making their sites more accessible, but they’re also being squeezed for settlements — and even if the plaintiff doesn’t seek damages, legal fees alone might place a huge burden on those businesses. What’s more, the cases seem to be driven by attorneys who are filing them en masse, potentially relying on businesses’ reluctance to go to court so that they can obtain a quick settlement, which places the compensatory aspect front and center, along with (if not overshadowing) the concern for accessibility.
“Most of us in the ADA community don’t really condone this behavior,” Emily Shuman, director of the Rocky Mountain ADA Center, told 5280, “We certainly want businesses to do everything they can to comply with the ADA, but no one in the community would want them to be hung out to dry.”
RELATED: Is your website at risk for an ADA accessibility lawsuit?
What sites can get sued over
The ADA doesn’t clearly define what constitutes an accessible site and that ambiguity may be something plaintiffs leverage for their own purposes. The W3C has published a list of common failures for its Web Content Accessibility Guidelines (WCAG) 2.0 that search marketers and businesses can reference.
The marketers that spoke to Search Engine Land for this article cited the following factors as part of the lawsuits their clients faced:
- A drop-down menu wasn’t fully keyboard-accessible due to some JavaScript.
- Insufficient text/background contrast.
- Site text was not scaleable.
- Image alt text wasn’t unique.
- Menu navigation did not properly support screen readers.
- There were no “skip navigation” options for screen readers.
- Password requirements did not support screen readers.
- Actions, like adding a product to cart, weren’t designed to support screen readers.
- PDF content was not able to be read in HTML format.
- Phone number on the website lacked a full description, potentially barring users from understanding what the number is for.
- Site information, such as the company address and hours of operation, were not labeled.
RELATED: 10 principles of digital accessibility for modern marketers
The impact on businesses beyond fines and legal fees
The penalties for businesses aren’t limited to the settlement or attorney fees — they also include the priority shift that is necessary to address accessibility as well as the opportunity cost that involves.
“The client was confused, and obviously frustrated, but did take quick action with their developers to make these changes,” Jessica said, noting that her client hired an accessibility consultant to create a checklist for their developers. “So essentially, the cost was the fine, the consultant fee, the hours for the developers to integrate those recommendations [instead of] other important tasks and the developer fee,” she added, “So, overall it was a significant chunk of change and time. This is what the client was most frustrated with.”
“The lawsuit really sidetracked a lot of other projects in order to get all hands on deck to correct the issues as quickly as possible,” Logan Ray, director of digital optimization at Beacon Technologies, said, adding that both agency and client-side processes have changed to address potential accessibility issues at the root.
Some businesses even made longer-term investments so that they could support users that rely on assistive technologies while avoiding future lawsuits. “Members of the UX team became subject matter experts in accessibility standards and ADA compliance,” said Kelly Stanze, a freelance digital strategist whose experience on this subject was gained in a past role as an in-house SEO at an enterprise company. “UX standards across the company were updated to reflect ADA compliance. This included some significant time investment in education across the organization, as these standards impacted the work of creative and technical resources upstream as well,” she said.
How SEOs adapted after the lawsuits
Although there is some overlap, optimizing for accessibility and optimizing for search engines remain largely separate objectives. Even so, clients’ experiences have search marketers rethinking their list of priorities.
“It’s making me think about our ‘low priority’ SEO audit recommendations and how we should be aiming to knock those out of the way as well as recommendations that move the revenue needle,” Jessica said, “Much of the time, we’re focused on improving the website from the ground up, with changes to technical and content elements, leaving elements like alt text to the end of our roadmap or as a ‘nice to have.’” “This has got me thinking about how we can forge better relationships with developers and other resources like ADA compliance consultants to bring the SEO industry up to speed with these ever-stricter guidelines,” she added.
“This was our first client to run into legal issues regarding accessibility, so it actually changed our approach in a very positive way,” Ray said, noting that his client training now includes guidance on compliance and that his agency now uses tools to scan for WCAG and Section 508 compliance, along with regularly scheduled audits to monitor for client-side changes.
In addition to revisiting sites built in the past and auditing them for accessibility, Whelan, whose client’s site was hosted on Squarespace, took an additional lesson from the experience: “It really needs to start at the top with platforms like Squarespace providing the tools their users need to not be vulnerable to legal action,” he said. Popular site builders, like Squarespace, may have limited accessibility features out of the box.
A focus on accessibility serves and protects businesses
The middle of the Venn diagram formed by SEO and accessibility is relatively narrow, including elements like headings, alt text, content organization and the proper labeling of information, but they’re enough to open the door for a greater conversation about accessibility — one that could save your clients tens of thousands of dollars while strengthening brand values and opening up a new audience for them to market to.
“My role as a content strategist and SEO consultant often serves as an introduction to that conversation,” Stanze said, “And, ultimately, the conversation always goes like this: You may NEED to do accessibility for legality and business reasons, but you SHOULD do it because it is the right thing to do.”
