Web Accessibility Demand Letters, What to Do?

Unfortunately, by then, the clock is ticking, and costs are starting to build. Recipients of these letters tend to make their first call to their web services provider. Unfortunately, their response typically is that the matter has nothing to with them, leaving the recipient without the faintest clue on how to proceed. This article serves to demonstrate an avenue in responding to such an action.

It is estimated that 94% of all website homepages demonstrate failures in digital inclusivity.

What to do before you get a demand letter

The best defensive measure a company can take prior to engaging in an activity that could potentially lead to a lawsuit is to understand their risk. If you know your level of vulnerability, you may be able to take preemptive measures that would mitigate cause for litigation. Take the following steps to get a better handle on your website’s risk before being sued.

1. Assess the risk yourself, you can do this in 60 seconds (and it’s free) at AAAtraq.com.
2. Check to see if your present law firm has specific expertise in this area. Web accessibility law is a niche type of practice and requires counsel from skilled attorneys who have experience in the matter.
   1. If your counsel does not have expertise in this area, it is in your best interest to hire an attorney who does to handle related matters. Contact AAAtraq for an up-to-date list of firms who are known to be skilled in this area.
3. Speak to your broker, understand if you have any ADA claims coverage.
4. Collate documentation you have regarding actions previously taken that can be used to ‘demonstrate reasonable adjustment’.
5. Sign up for AAAtraq. It won’t cover you for this initial case, but you are at least covered for the future.

The detail of demand letters

When venturing deeper into a website, the failures are likely greater. As a result, in 2020, approximately 265,000 legal demand letters were issued citing web inaccessibility,¹ and, roughly 0.78% turned into lawsuits (2058 cases).² Most of these cases settled. Though only a fraction of the cases where a demand letter was sent matured to a litigation, website operators were forced to confront web accessibility and update their websites

The demand letters typically cite violations of various laws which, depending on the type of defendant and the jurisdiction wherein the plaintiff(s) reside(s), have specific applications to certain types of website operators. Most situations involving government agencies or related entities cite violations of Section 508 of the Rehabilitation Act of 1973, whereas cases concerning privately held businesses tend to cite Title III of the Americans with Disabilities Act of 1990 (ADA). Allegations of violations of state and local laws are often included depending on where a disabled plaintiff may reside (e.g., California’s UNRUH Act). Furthermore, certain states have passed legislation geared towards more generally applicable accessibility laws, such as Colorado’s recent passage of HB 21-1110 (“Concerning Adding Language to Relevant Colorado Statutes Related to Persons With Disabilities to Strengthen Protections Against Discrimination on the Basis of Disability, and, in Connection Therewith, Making an Appropriation”).³ Regardless of the statute under which the violation occurs, website operators must be prepared to respond, defend themselves, and make applicable modifications to avoid liability exposure.

How to respond to a demand letter

This article is meant to prepare you for the unfortunate (and perhaps inevitable) circumstance when you receive a demand letter. Upon receipt of a demand letter, some website operators think it is junk mail or that the issue will disappear if the letter disappears. Don’t make that mistake. These letters are real and immediate attention should be given to them to offer the best possible outcome. Also consider the following:

1. Don’t throw away the demand letter or the envelope it came in (and don’t delete the email that arrived if it came through digital means). Don’t panic. Take the letter seriously and begin thinking about your next steps. The entity sending you this letter may be doing so for a variety of reasons: some noble and some in search of a way to make money. Consider the steps below and obtain the advice of your counsel in engaging in further action.
2. Contact your attorney and seek their counsel on next steps. Every case is different, although many seem cookie cutter, and even sometimes contain remnants from a prior letter sent to someone else. Merely because a plaintiff’s attorney is sloppy does not relieve you of your obligations to be professional. Your attorney should counsel you on how best to respond to the letter and what steps to take next. Remember, this is a specialized area. If you do not know an attorney who focuses in this area, consult your regular attorney, and ask if they have the requisite experience or if they can refer you to someone who does.
3. Contact your insurance broker to see if you have insurance coverage that may provide a defense and appoint an attorney. Some insurance policies cover claims of discrimination by your website. As the defense of these claims and any settlement you may need to pay could eclipse $10,000, you may wish to see if you have insurance to protect you. And, before you get a claim, check with your broker to see if you would be covered if such a claim were to be made. Explore your options if you currently do not have coverage included.
4. Preserve all documentation regarding your website so as not to destroy evidence. A spoliation claim can hurt your defense, even if you did nothing wrong. Keep all documentation safe and readily accessible. Provide your counsel with this documentation.
5. Obtain/Locate any information related to contracts that may exist between yourself, web developers, and any other vendors that you are working with that might be a cause of your problem. Such contracts may include indemnification or representations and warranties for compliance.
6. Consider using online automated vender services to research your potential exposure. AAAtraq’s provides a free tool that allows users to determine their risk position.

Again, don’t panic if you are to receive a demand letter. Consider the above steps and those actions recommended to you by counsel. AAAtraq is here as a tool to help you prevent and respond to matters that concern web accessibility and digital inclusivity. This information is for general purposes only. Each case is different, and the facts of each situation should be evaluated by an experienced attorney. AAAtraq does not purport to be providing legal counsel in any way. Speak to your counsel to determine the appropriate steps you should take and if there are additional measures from those mentioned above. Do not wait for a demand letter to come before protecting yourself against litigation. Evaluate your website risk at https://AAAtraq.com/ (opens in a new window) and discover how AAAtraq can protect and provide coverage for your website before a problem arises.

¹ “U.S. Businesses Potentially Spent Billions on Legal Fees for Inaccessible Websites in 2020,” Bureau of Internet Accessibility, January 7, 2021, https://www.boia.org/blog/did-u-s-businesses-spend-billions-on-legal-fees-for-inaccessible-websites-in-2020#:~:text=U.S.%20Businesses%20Potentially%20Spent%20Billions%20on%20Legal%20Fees%20for%20Inaccessible%20Websites%20in%202020,-January%207%2C%202021&text=In%20a%20bombshell%20report%20published,sent%20to%20businesses%20last%20year (opens in a new window).

² Ibid.

³ “Colorado House Bill 21-1110: Concerning Adding Language to Relevant Colorado Statutes Related to Persons With Disabilities to Strengthen Protections Against Discrimination on the Basis of Disability, and, in Connection Therewith, Making an Appropriation” (State of Colorado, n.d.), https://leg.colorado.gov/sites/default/files/2021a_1110_signed.pdf (opens in a new window).