Why do we need a risk management approach to online accessibility?

Dec 13 2022

Why do so many organisations have websites that fail their basic legal requirement of being accessible to people living with disabilities and open themselves up to the risk of litigation?

Often, it’s down to a lack of knowledge, but also the wrong approach to tackling the issue. In this piece, we’re going to look at why taking a proactive, Risk Managed approach to digital accessibility is the best way to avoid legal action and related costs.

Most websites are breaking the law

Most organizations have a digital footprint, usually maintaining a corporate website, but increasingly this also includes other digital channels, such as a mobile app. Virtually every business or organization also has an accompanying legal requirement (opens in a new window) to make their website, app or other digital property accessible to people living with disabilities.

But there’s a problem. The vast majority of websites are not compliant and do not meet their legal requirements. The latest studies (February 2022) show that 96.8% of website homepages (opens in a new window) fail basic accessibility tests and are therefore open to the risk of legal action.

What’s even more surprising is that there is a complete lack of awareness of this staggering number – research carried out by AAAtraq shows that 73% of organizations believe their own website is actually compliant and does not require action. The reasons for this disconnect between reality and awareness are manifold – for example, many stakeholders don’t fundamentally understand accessibility or have been fed erroneous information from digital vendors that everything is OK; whatever the reason, it is clear that the present approaches to digital accessibility are not working and are increasingly untenable going forward.

The cost of failing to be compliant

The legal industry is well aware of the high number of websites that are failing with basic accessibility and don’t meet the requirements of the Americans with Disabilities Act (ADA) and other state governed accessibility-related legislation. Since 2015 the number of ADA demand letters issued by law firms has been increasing and is now turning into an epidemic; our estimate based on industry figures and the rate of growth is that in 2022 there will be just under 475,000 letters issued in the US alone. We estimate the number of claims filed (opens in a new window) by the end of 2022 will also be nearly 5,000, representing an incredible 216% year-on-year rise.

The twin rise of demand letters and number of claims is also leading to a huge financial outlay from US businesses. An initial first demand typically has average costs associated with it of $27,500, while the cost of subsequent claims exceed this by between 50% and 75%. Fighting a case starts at around $51,000, and typically ends up being $110,000. But there are also hidden additional costs caused by the distraction and time spent internally on fighting a case; it’s draining, stressful and hugely time-consuming, particularly for smaller organizations. In fact, the overall cost to businesses failing to comply with the law relating to digital accessibility could be as high as $8.1 billion.

Why are legislation and legal costs increasing?

The increase in litigation relating to digital accessibility and related spending on it has grown steadily since 2018 and sends a strong message that current approaches to compliance are not working. Statistics relating to the percentage of websites that fail basic accessibility compliance tests has also remained relatively constant – compare the 97.8% that fail in 2019 and the 96.8% in 2022, for example. Until more organizations take online accessibility seriously the number of claims and levels of spend is going to keep on rising.

One of the problems is that most organizations are taking a reactive approach. Fundamentally they view it as a simple technology problem rather than a risk issue that can be prevented. They are waiting for the ADA demand letter to arrive before taking any action on actually improving the accessibility of their website. By this time, it will be too late to avoid substantial costs as they will need to seek counsel from their attorney to deal with the demand letter. Even then, they may not take the kind of proactive approach that will prevent the same thing happening again.

The pandemic may have also had an impact. COVID-19 proved to be a catalyst that accelerated digital transformation with more information available and transactions carried out online. As we rely more and more on digital, the need to be accessible and not discriminate has never been greater. This increase in digital and the relative attention on it, is also shining a light on accessibility and the need for compliance.

Manage your risk

Reducing and removing the risk around digital accessibility requires taking a proactive rather than reactive approach and following actions which will prevent the chance of legal action taken against you. Taking preventative measures and adequately managing your risk involves three major elements to happen:

  1. Having independent clarity on your level of risk
  2. Fixing the problem with a sustainable approach
  3. Protect yourself from it happening again

Having clarity on your level of risk

Understanding your level of risk requires getting independent testing of your current website. Here you can use an automated solution to check your risk level. It’s essential any assessment of your risk needs be independent and not provided by your digital agency or current CMS vendor; as with inspecting a new building for accessibility compliance, this would never be carried out by the construction firm carrying out the work. The output from any review also needs to be presented in a non-technical way so that business stakeholders can understand where the failings are, and what needs to be done.

Fixing the problem with a sustainable approach

Having an understanding of the level of risk and specifically what the main problems are with your site or app then allows you to take corrective action to fix any problems with accessibility. However, it is very easy for problems to return as new content and changes are made to a website or app. Therefore, you also need to take a sustainable approach to fixing the problem, with appropriate processes such as ongoing testing and remedying any issues.

Protect yourself going forward

Keeping on top of digital accessibility requires ongoing management, and there is always an ongoing risk of non-compliance. Protecting yourself with insurance to cover the significant costs associated with legal action is a sensible step.

Taking a risk management approach

Taking a risk management approach to online accessibility hugely reduces the chances of getting an ADA demand letter and accompanying legal action. It also provides the financial cover for peace of mind. It also means your website doesn’t discriminate against people with disabilities; this is the right thing to do from both a compliance and a moral standpoint.

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