Are Your Vendors Exposing You To ADA Online Litigation?

Oct 05 2022

There has been a lot of recent activity from Senators and other government departments, on the Americans with Disabilities Act (ADA) and how change needs to happen.

This recent activity has got many organizations reviewing the way that they think about inclusion, including updating their policies and the way they operate, but is that enough?

When it comes to websites, many organizations are left vulnerable to this area and are therefore vulnerable to litigation. In many cases, it’s not their fault, we hear all too often of organizations trusting that their website developers to create a good product/result or that they’re just being told what they want to hear, that “it’s ok, it’s been dealt with”. All of this is fuelling the problem.

We often find organizations to be in three status categories when it comes to ADA litigation:

1. They don’t know the risk

Many organizations are still unaware that they are vulnerable to website ADA litigation. It might be something that isn’t talked about in their sector, or they don’t know anyone that’s already had a demand,

2. They don’t know the laws

A lot of organizations don’t know that the ADA can be applied to websites. They also don’t know that legislation for example the Unruh Act in California can also be applied to websites.

3. They don’t know the rules

This third group is a big one, they know they are at risk and what laws apply to them/their website. However, they don’t understand what they need to do to be compliant. They don’t understand the standard, let alone how to achieve it.

All three groups of organizations are not getting it wrong on purpose, they need educating. They need to know about why they are risk, what the laws that cover their website are and what the rules are. Many think this is just about diagnostic testing, but it’s not, there’s more. Diagnostic testing alone won’t stop organizations being at risk, they’ll still be in the same position, and many will then be in the next state ‘We received a demand, we need help’.

The Problem

The number of demand letters being issued is continually rising, organizations are spending more time and money than ever before on diagnosing problems with their website, but it’s not solving the problem, they are chasing the impossible, chasing (full) compliance - something that will never be achieved, nobody will ever be 100% compliant. The spending isn’t working to improve their website, they’re just spinning plates.

Instead, organizations need to stop thinking about this as a website or technical issue and start dealing with it as a risk issue. Rather than focussing on the diagnostics, organizations need to take a more holistic view on how they deal with ADA website non-compliance risk, not just a one off fix.

Continuous PROTECTION

AAAtraq’s Continuous PROTECTION provides a three-point service, guiding organizations with a controlled approach which is underpinned by intelligence driven automation.

ADA Insurance

ADA Insurance is the first point of the service, non-deductible costs coverage which can be used if in the future a demand is received.

ADA Monitoring

Then there’s ADA Monitoring, a way for anybody, regardless of technical ability, to view and track their level of exposure to litigation.

ADA Compliance

The final point is ADA Compliance. The law itself is actually proving that your organization can demonstrate reasonable adjustment to people living with disabilities, not just compliance to a standard. ADA Compliance means things like having an audit trail to show what has been done, therefore, demonstrating how your organization is making reasonable adjustments.

There is more, it also includes staff training (as we’ve mentioned no one’s getting it wrong on purpose, they just need educating) and support, ensuring that staff always know what they should be doing and how. By following the AAAtraq process there are many benefits as we’ve mentioned, but one thing that should never be forgotten, is that by following the steps organizations are improving their websites usability for people living with disabilities and are on track to meeting their Diversity and Inclusion pledges.

Vendors

Then there is vendor policies and statements, which is a big one. This relates to how vendors are being dealt with, what their liabilities are, what their indemnity is (if they have promised compliance), and the vendors themselves providing correct and relevant details in accessibility statements.

To do this, within the AAAtraq process, users are invited to enter the details of their vendors.

Every website has vendors. These might include the organization or people who created or manages the website, uploads content, it could be agencies that optimise the website or anyone else who provides services relating to the website.

To ensure standards are being upheld, via their AAAtraq program, organizations are able to create policies for their vendors which are customizable to their own standards and requirements. Vendors, should be aware of the importance of digital inclusion and their responsibility and obligation to provide compliant services that don’t leave you exposed. However, these policies ensure that vendors do know what the standards of that organization are, how they should report back to the organization, so there is no question of what is expected of them. This also provides website owners the confidence to ask questions of their supplies, to ensure they understand what they are doing and how they are protected.

AAAtraq informs the vendors of these policies, sends notification of when they are updated and logs communication, which is all part of the audit trail that organizations can use to demonstrate reasonable adjustment.

Of course, as part of compliance you do have to look at the diagnostic actions, we’re not saying don’t deal with the technicalities but deal with them in a risk management framework.

Let’s draw a parallel to a car. In terms of the fuel, water and air for the tires that's something that as the driver of the car, you have to deal with, you're responsible for it and it’s something you deal with on a day-to-day basis, like updating the text on your website. But, if your engine management warning light comes on, you take to the garage who plug it into the computer, which will reel off a list of technical things which may need attention. You wouldn't expect to know what they mean and how to fix them, so you ask your mechanic to do them. It's the same with you web team or the web developer you use. You're the risk management person, the diagnostic detail is down to them.

So don’t let your measure of progress be the arrival of a demand letter which will be costly in terms of both time and money, stop chasing compliance, and make sure your vendors are being held to account.

Start dealing with ADA effectively, take 30 seconds to independently clarify your risk, (its FREE, we don’t even ask for your email address) visit www.AAAtraq.com/check (opens in a new window) to see your level of risk, along with your Compliance score, (green is good, red is bad – the higher the number the worse it is).

To find out more about the Senators letter and the Department of Labour (DOL) report, in our recent article. (opens in a new window)

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