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  • Can ADA Web Accessibility “Testers” Sue?

    Can ADA Web Accessibility “Testers” Sue?

    As a website owner, you’ve likely heard about web accessibility and the implications of the Americans with Disabilities Act (ADA) on your digital space. Web accessibility is an integral part of the digital world, aiming to ensure that everyone, including individuals with disabilities, can access and use web content effectively.

    In recent years, there has been a surge in ADA web compliance lawsuits that could impact your website and business. One key issue is the debate over whether ADA web accessibility “testers” have the legal standing to sue. This article aims to elucidate this complex issue and help you understand how it may affect your business.

    The Americans with Disabilities Act and Web Accessibility

    The Americans with Disabilities Act (ADA), signed into law in 1990, prohibits discrimination against individuals with disabilities in all areas of public life. However, it was initially unclear whether this act extended to websites, as they were less prevalent when the act was passed.

    With the advent of the digital era, courts have gradually expanded the ADA’s scope to include websites, considering them as ‘places of public accommodation.’ This interpretation implies that websites should be accessible to individuals with disabilities, including those who have visual, auditory, or motor impairments.

    In 2022, the Department of Justice (DOJ) published guidance confirming that the ADA applies to business websites. Non-compliance could expose your business to the risk of legal action, including lawsuits and fines.

    The Rise of ADA Web Compliance Lawsuits

    Recently, lawsuits related to ADA web compliance have become increasingly common. Many businesses, both small and large, have faced legal challenges due to the lack of accessibility of their websites.  In 2023 alone, federal and state courts dealt with 4,605 lawsuits related to web accessibility. 

    These lawsuits argue that inaccessible websites create a discriminatory environment, depriving people with disabilities of the same opportunities afforded to those without. While many of these lawsuits are initiated by individuals with disabilities, a new group known as “testers” has emerged as a significant force.

    Learn more about What You Need to Know About ADA Web Accessibility Lawsuits.

    What is an ADA Web Accessibility “Tester”?

    An ADA web accessibility “tester” is an individual who checks websites for ADA compliance. Their primary goal is to identify ADA violations, not necessarily to use the services or products provided on the website.

    These individuals, sometimes people with disabilities themselves or professionals in accessibility consulting, are equipped with the knowledge and tools to test whether a website complies with established accessibility standards, such as the Web Content Accessibility Guidelines (WCAG).

    If the tester deems the website inaccessible, they may file a lawsuit against the business. Some view this role as essential for holding companies accountable, while others see it as an opportunity for lawsuit abuse and exploitation.

    What Gives Someone Ground to Sue?

    Under the United States Constitution, a party must have standing to sue. ‘Standing’ is a legal term that refers to a person’s ability to demonstrate a sufficient connection to and harm from the law or action being challenged, supporting that person’s participation in the case. This requirement implies the person must allege that they attempted to access the business but were unable to or were interested in doing so but could not due to the website’s non-compliance.

    In ADA lawsuits, the person suing must show that they experienced discrimination due to the website’s non-compliance. The question of standing has been a significant point of contention, especially when it comes to testers. 

    Can someone who has no intention of using your services or buying your products sue you because your website is not accessible?

    This question brings us to a landmark case in ADA web accessibility lawsuits – Acheson Hotels, LLC v. Deborah Laufer.

    Acheson Hotels, LLC v. Deborah Laufer

    In late March, the case of Acheson Hotels, LLC v. Deborah Laufer became a focal point in the discussion surrounding the ADA web accessibility testers’ right to sue.

    Plaintiff Deborah Laufer, a self-proclaimed “tester,” has filed over 600 lawsuits alleging ADA web accessibility violations since 2018, primarily targeting the hospitality industry.

    The lower courts initially dismissed Laufer’s case against Acheson Hotels, arguing that Laufer did not intend to visit the hotel and, therefore, had not suffered any injury. However, Laufer appealed the decision, asserting that she was indeed affected by being unable to access information on the hotel’s website due to her disability. Despite acknowledging her role as a tester, Laufer argues that her motive is irrelevant.

    In their brief in opposition, Laufer’s counsel referred to the text of the ADA, writing, “[…] One can readily find that a disabled person’s encounter with violations of the ADA is a real-world harm by reviewing the plain language in the findings and purposes set forth by Congress.”

    The First Circuit Court of Appeals agreed and reversed the initial decision, asserting that Laufer had standing. 

    Supreme Court Case Takes Unexpected Turn

    On March 27, 2023, the Supreme Court agreed to hear a case, but the matter took an unexpected twist. Laufer’s attorney was suspended from practicing law for defrauding hotels by lying in fee petitions and during settlement negotiations. Consequently, Laufer voluntarily dropped her lawsuit, rendering it moot. In a unanimous decision, the Supreme Court agreed.

    A lawsuit can become moot when its central conflict has been resolved, as was when Laufer withdrew her claim. While the Supreme Court frequently addresses issues of standing, the Court can still address issues of mootness and the cases standing in any order it chooses.

    While this particular lawsuit was declared moot, the split among the circuits regarding tester standing is still “very much alive,” and it is open to ruling on this issue in future cases.

    The Future of Web Accessibility

    216digital is not a law firm; we cannot provide legal advice. However, as experts in web accessibility, we understand that significant Supreme Court cases often influence the accessibility landscape. Although the Court’s ruling in Acheson Hotels, LLC v. Laufer does not alter the law, it signals the Court’s willingness to address concerns regarding the legal standing of ADA testers.

    This stance may dissuade some ADA testers from initiating lawsuits, particularly against well-defended, high-profile defendants. Yet, as we’ve emphasized in previous articles, the prevalence of serious accessibility barriers is not few and far between.

    With the uptick in web accessibility lawsuits each year, prioritizing web accessibility has never been more crucial. To minimize potential legal risks, online businesses must monitor their website’s accessibility and collaborate with accessibility experts to adhere to the WCAG standards.

    Steps Businesses Should Take to Ensure ADA Compliance

    Considering current affairs, it’s crucial that businesses ensure their websites are ADA-compliant. Here are some steps to take:

    1. Audit Your Website: Conduct a thorough website audit using ADA compliance tools or hire a professional.
    2. Follow WCAG Guidelines: The Web Content Accessibility Guidelines are reliable recommendations for making your website accessible. Aim for WCAG 2.1 Level AA compliance, which covers a broad range of recommendations for making web content more accessible.
    3. Regularly Update Your Website: Web accessibility is not a one-time task. Regularly review and update your website to ensure ongoing compliance as guidelines and technologies evolve.
    4. Train Your Team: Ensure your team understands the importance of ADA compliance. Provide them with training on maintaining accessibility during website updates and content creation.
    5. Regular Monitoring: Regularly monitor your website to ensure ongoing compliance.
    6. Consult with an Expert: If in doubt, consult with a web accessibility expert or lawyer specializing in ADA compliance to fully understand your legal obligations and ensure you’re doing everything necessary to comply.

    Learn more about Mitigating ADA Lawsuit Risk: Affordable Solutions for Online Business.

    Protect Your Online Business

    ADA and web accessibility are crucial considerations for all website owners. The debate over whether ADA web accessibility “testers” can sue carries potentially significant implications. Regardless of the outcome, businesses need to strive towards full ADA compliance to avoid lawsuits and ensure a better, more inclusive user experience for all.

    Find out if your website is ADA compliant today by scheduling a 15-minute complimentary website audit and consultation with our experts at 216digital. We can help determine if your website is at risk of a lawsuit and offer fast, effective ADA compliance solutions. This ensures your site is accessible to everyone, reducing your risk of litigation so you can continue focusing on what matters most: running your business.

    Greg McNeil

    July 10, 2023
    216digital, ADA Compliance, ADA Web Accessibility, Website Accessibility
    Accessibility, ADA Compliance, ADA Lawsuit, ADA non-compliance, ADA Website Compliance, Website Accessibility
  • Mitigating ADA Lawsuit Risk: Affordable Solutions for Online Businesses

    Mitigating ADA Lawsuit Risk: Affordable Solutions for Online Businesses

    Are you worried about your ADA compliance as an online business owner or website manager? If so, you may be aware that many companies have faced lawsuits due to non-compliance with the Americans with Disabilities Act (ADA). These guidelines protect people with disabilities and provide barrier-free access to web content. Failing to comply with these guidelines could lead to costly legal battles. However, achieving full ADA compliance might appear daunting and costly.

    The good news is that there are several steps you can take to mitigate the risk of an ADA lawsuit without breaking the bank. In this blog, we will discuss practical and budget-friendly solutions to enhance your website’s accessibility.

    The Americans with Disabilities Act

    The Americans with Disabilities Act is a civil law that protects the rights of people with disabilities in all areas of public life. While the ADA does not explicitly mention online content, the courts have clarified that the law does apply to websites, specifically Title III. Title III of the ADA prohibits the discrimination of those with disabilities in places of public accommodation.

    In fact, in 2010, the Department of Justice (DOJ) stated that websites are public places subject to the ADA’s requirements. Unfortunately, this ruling has exposed millions of online businesses to the risk of a frivolous ADA lawsuit.

    What is an ADA Web Accessibility Lawsuit?

    An ADA Web Accessibility Lawsuit can be filed by anyone who feels that they have been discriminated against due to the inaccessibility of a website. The consequences of such a lawsuit can be severe, including hefty fines, legal fees, and damage to the business’s reputation.

    In recent years, there has been an increase in lawsuits filed against website owners for failing to comply with ADA. In 2022, 2,387 web accessibility lawsuits were filed in Federal and California State Courts under the Unruh Act. However, 97% of demand letters are settled and never evolve into a case. This means plaintiffs sent more than 1,500 demand letters per week in 2022.

    As an online business or website owner, it is essential to ensure your website is accessible to everyone, regardless of their disability. By doing so, you can not only avoid legal action but also open yourself up to a wider audience and improve the overall user experience for your customers.

    How to Mitigate the Risk of a Website Accessibility Lawsuit

    The best way to avoid an ADA lawsuit is to ensure your website is accessible to all users, including those with disabilities. You may not have the time or money to make your site fully compliant, but fear not! There are steps you can take to make your website more accessible:

    Conduct a Self-Evaluation

    The first step is understanding your website’s current level of accessibility. Conduct a self-evaluation of your website to identify areas where it may not comply with the ADA. This can involve using automated testing tools or manual testing with assistive technologies such as screen readers.

    Many free tools are available online to help with this process, such as WAVE (Web Accessibility Evaluation Tool) and Google Lighthouse. These tools will generate reports highlighting areas of your website that need improvement, making it easier to prioritize the most critical issues.

    Prioritize High-Impact Issues

    Not all accessibility issues carry equal weight. To make the most of your limited time and resources, focus on the high-impact issues that will benefit the most users. These may include:

    • Ensuring your website is keyboard-accessible
    • Providing alternative text descriptions for images
    • Offering clear and concise labels for forms and buttons
    • Navigational menus and links

    Addressing these areas will significantly improve the user experience for those with disabilities, reducing the likelihood of complaints and lawsuits.

    Develop a Plan

    Now that you’ve identified and prioritized your website’s accessibility barriers, develop a plan to address them. Break your plan into manageable steps, set realistic deadlines, and allocate resources accordingly. While it might not be possible to address all issues immediately, demonstrating a commitment to improving accessibility can help mitigate legal risks.

    Add an Accessibility Statement and Contact Information

    Include an accessibility statement to demonstrate your commitment to web accessibility. This can be an essential part of your defense in an ADA lawsuit. Your statement should include information about your commitment to accessibility, steps taken to improve accessibility, and how users can report issues or request accommodations.

    Make sure your contact information is easily accessible on your website, allowing users with disabilities to reach out to you with concerns or suggestions.

    Be Responsive to Complaints

    Addressing accessibility complaints promptly and effectively can demonstrate your commitment to making your website more accessible. If a user reports an issue, take the time to understand their concerns and work to resolve the problem as quickly as possible. In addition, documenting your responsiveness to complaints can be invaluable in case of a legal challenge.

    Keep an Eye on Updates

    Web accessibility standards and best practices are constantly evolving. Stay informed about updates to the Web Content Accessibility Guidelines (WCAG) and other relevant resources, such as the ADA‘s website. Regularly reevaluate your website to ensure that it remains compliant with current standards.

    Get an ADA Lawsuit Risk Audit

    Finally, consider investing in a professional ADA lawsuit risk audit. While it may be an additional expense, a professional audit can provide valuable insights into your website’s accessibility status and potential legal risks. An audit can help identify areas that need improvement and provide guidance on how to address them.

    Prevent an ADA Website Lawsuit

    Achieving full ADA compliance can be challenging, especially for small businesses with limited time and resources. However, it’s essential to keep in mind that, even if you take these steps, it is still possible to be sued for having a website that is not fully compliant with the ADA. But, by taking these steps, you can demonstrate that you are taking the matter seriously and making a good-faith effort to comply with the law. Remember, the key is to be proactive, prioritize high-impact issues, and demonstrate a commitment to accessibility. By doing so, you’ll protect your business from legal exposure and create a more inclusive online experience for all users.

    216digital Specializes in Web Accessibility

    If you would like to learn more about your risk of an ADA lawsuit and the steps you can take to protect your website against frivolous ADA lawsuits, schedule a complementary ADA Strategy Briefing with 216digital.

    216digital’s can let you know whether your website is at risk of an ADA lawsuit and provide professional services dedicated to ensuring your website stays off of the radar of predatory law firms so you can continue focusing on what matters most, running your business.

    Greg McNeil

    April 28, 2023
    216digital, ADA Web Accessibility
    Accessibility, ADA Compliance, ADA Lawsuit, ADA non-compliance, ADA Web Accessibility, ADA Website Compliance, Website Accessibility
  • Making the Internet Accessible – The History of Website ADA Compliance

    Making the Internet Accessible – The History of Website ADA Compliance

    ADA website compliance!

    It’s become a popular topic as of late, especially for business owners that have a website. 

    But, it might surprise you to learn that ADA compliance has been around for quite some time. Its current popularity is a direct result of its evolving legal interpretations for what makes a website accessible.

    Below, we’ve plotted the history of Website ADA Compliance and its role in preventing discrimination online.

    (more…)

    Greg McNeil

    July 23, 2020
    216digital, ADA Compliance, Website Accessibility
    ADA Compliance, ADA Lawsuit, ADA non-compliance, ADA Website Compliance
  • Are ADA Overlays a Liability? Here’s What Accessibility Experts Had to Say

    Are ADA Overlays a Liability? Here’s What Accessibility Experts Had to Say

    Lawsuits for websites that are not ADA complaint continue to threaten many internet businesses.

    These companies often turn to accessibility tools to quickly make their sites ADA compliant, thinking they’ll be protected from a lawsuit.

    Accessibility tools (screen overlays and widgets,) such as UserWay, AccessiBe, and AudioEye, work by adapting website content to users’ needs.

    Yet, the levels of accessibility that these tools offer varies from overlay to overlay. To cut through the noise surrounding website accessibility tools, we reached out to several industry experts.

    The ADA Experts

    Kim Testa: The Executive Vice President of the Bureau of Internet Accessibility, industry leaders in eliminating the accessibility digital divide since 2001.

    Eli Freedman: The Senior Partnership Success Manager of accessiBe, a two-part web interface and ai accessibility tool hailed as “World-Leading Web Accessibility Technology.”



    Richard Hunt: Partner, Hunt Huey PLLC. Hunt Huey PLLC has a national disability rights practice that includes defending real estate developers, retailers, restaurants, shopping centers, banks, apartment owners and managers, hotels, single-family developers, homeowners associations and other enterprises in ADA and FHA litigation.

    With their professional insight, we find answers to some of the most pressing questions surrounding the use of website overlays to achieve ADA compliance online.

    1. Are screen overlay products effective for making websites appear to be ADA compliant?
    2. If you install a screen overlay product, will you be less likely or more likely to become the victim of an ADA non-compliance lawsuit?
    3. When using a screen overlay product, can site visitors use their own assistive technology?

    Are screen overlay products effective for making websites appear to be ADA compliant?

    Screen overlay products improve website accessibility by adapting the existing assets of a website to best fit the needs of a disabled user.

    These changes are not automatic and must be triggered by the user before making any visible adjustments to a site. We asked Kim, Eli, and Richard their perceptions of the effectiveness of these accessibility tools.

    Kim Testa|The Bureau of Internet Accessibility

    “In the world of digital inclusiveness and accessibility, overlay products do nothing to ensure the original website code is compliant to WCAG 2.1 A/AA.  

    They work by “recreating” the web pages with “their” code. A script is then inserted into the website’s original code, which in turn hijacks the user’s screen reader and forces them to learn a new technology. In some instances the overlay solutions make the user identify themselves as someone living with a disability. 

    Keep in mind that 99% of people that need assistive technology, have their own and do not need, nor want to be forced to use someone else’s. While overlays may sound like an easy, quick-fix – they do absolutely nothing to remediate the accessibility issues of a website, web-based applications, or native mobile apps.”

    Eli Freedman | accessiBe

    “There has been a lot of buzz in the marketplace discussing why web accessibility overlays are not compliant. We can say for certain that overlay companies pose their solutions as being compliant, when in fact they are not.

    Research shows overlays only handle up to 25% of the WCAG requirements leaving the remaining 75% inaccessible and vulnerable to lawsuits. Why? Those overlays only handle the more simple requirements which are the CSS adjustments of a website. For instance, color contrast ratios, stop animations, larger cursors, font colors and sizing, and more.

    Where accessiBe differs from other layover tools is that it handles both the foreground CSS adjustments and the 75% ‘heavy background lifting’ WCAG 2.1 AA requirements like Aria attributes, assistive technology compatibility, alt tags for images, contextual understanding Ai that assigns all the correct elemental structures like pop-ups, forms, icons, buttons, and website behaviors.”

    Richard Hunt | Hunt Huey PLLC

    ““ADA compliant” isn’t really a meaningful question because there is no objective regulatory or judicial standard for business website ADA compliance (Government websites covered by the Rehabilitation Act have a standard almost identical to WCAG 2.0 AA). In fact, there isn’t even agreement on why a website has to be accessible under the ADA, and until you know why the website needs to be accessible it is impossible to say whether it meets that need.

    We can say that in the broadest terms a website does what the ADA requires if a disabled individual has meaningful access to all the goods and services it offers. That is a subjective standard because it depends on the particular user and their assistive technology. Government agencies, businesses, and lawyers hate subjective standards, so most are using WCAG 2.1 or 2.0 AA as a kind of substitute measure of accessibility. Those standards involve compromises (that’s why there is an AAA standard) which means that even a website that conforms to WCAG 2.1 AA may not be accessible to all users and all assistive technologies.

    The courts have not yet resolved whether the compromise represented by WCAG 2.1 AA is good enough to satisfy the ADA or is perhaps even better than the ADA requires. As for overlays, if you don’t know what the standard is you can hardly claim to meet that standard. A claim that an overlay makes a website ADA compliant will always be false, no matter how good the overlay is.”

    Bonus Tip: To find out if your website is accessible, you can request our accessibility specialists to conduct a free site scan, by clicking here.

    If you install a screen overlay product, will you be less likely or more likely to become the victim of an ADA non-compliance lawsuit?

    For many companies, the purpose of installing an accessibility tool is to protect themselves from an ADA non-compliance lawsuit.

    But how effective are accessibility screen overlays at protecting your business? Here’s what Kim, Eli, and Richard had to say.

    Kim Testa|The Bureau of Internet Accessibility

    “Since overlays really don’t fix the issues, websites are wide open for a lawsuit. There are tools on the market that are used to identify websites that are using overlays and widgets…  

    It’s simple for lawyers to get a list and target the companies using them. There is no magical solution to becoming digitally compliant, the only way to know if a website is compliant is to have a complete audit, both automated testing and manual testing (done by individuals living with disabilities) all done at the same time.”

    Eli Freedman | accessiBe

    “If a website owner has a layover tool that does not handle the ‘heavy background lifting’ as stated above, they are definitely at a greater risk of being served a demand letter or a lawsuit.


    Reports have been received from people in the disabled community in tandem with law firms around the US are grouping together to find websites that are using layovers and targeting them with ADA lawsuits and demand letters as they too know those layovers are not making their websites accessible.”

    Richard Hunt | Hunt Huey PLLC

    “Plaintiff law firms use software scanning tools to look for non-conformance with WCAG 2.1 or 2.0 at success level AA. A product can only reduce the likelihood of a lawsuit if it makes the website look like it is in conformance when scanned by the most commonly used software tools. 

    As I understand it software scanning tools will not ordinarily trigger the accessibility features of an overlay that requires a user choice. Thus, if the website relies on the overlay to correct underlying non-conformities based on a user choice the overlay will not reduce the risk of a lawsuit. 

    It is also important to remember that software scanning tools not only miss errors, they also report false positives. For example, because a scanning tool can’t tell if an image is purely decorative it will mark a decorative image without alt text as a nonconformity even though such images are not required to have alt text under WCAG 2.1 AA. 

    To reduce the risk of litigation any solution must make the website appear perfect or almost so to the most commonly used scanning tools, whether or not that really makes the website easier to use for those with disabilities. As for plaintiffs targeting websites that use layovers, it would not be surprising if it were perceived by the plaintiff’s bar as a profitable enterprise.”

    When using a screen overlay product, can site visitors use their own assistive technology?

    Many disabled internet users have been dealing with accessible websites for a long time. Since most sites aren’t aware of their needs, they’ve had to rely on their own assistive technology to navigate the internet.

    But if a disabled user tries to use their own tools on a site with an accessibility overlay, can both systems communicate with each other?

    Kim Testa| The Bureau of Internet Accessibility

    “Yes, but as [I] stated earlier, a user may come to the website with their own assistive technology but, upon entering the site, the script will take over and force the visitor to use the overlay technology, making the user abandon their own, known assistive technology.  

    Many times when this happens the user will leave the site and never return. Companies are looking to acquire new visitors not frustrate them to the point that they leave. ”

    Eli Freedman | accessiBe

    “In most cases, yes they can, however, that does not mean that it will be completely compatible with all assistive technologies like screen readers or keyboard navigation only.

    In addition, there are certain layover tools that have screen readers embedded within their ‘solutions’ which is purely a marketing gimmick. This is actually counterproductive since those with disabilities have their own assistive technologies and the embedded screen reader’s conflict with their own technologies.”

    Richard Hunt | Hunt Huey PLLC

    “Whether a particular overlay is compatible with any particular assistive technology is not within my technical expertise. What I can say is that in general, the ADA requires that any facility be accessible to disabled individuals as they come to it; that is, with whatever technology they are accustomed to using. You can’t tell a wheelchair user, for example, that they need to switch to a mobility scooter to enter your store. 

    A similar principle exists in the Web Content Accessibility Guidelines; that is, they are intended to create accessibility solutions that do not depend on the user’s choice of assistive technology to the extent that is possible. An overlay that is incompatible with the most commonly used assistive technologies, and in particular with the most popular screen readers, won’t be regarded as improving the accessibility of a website for purposes of the ADA. 

    There may be some assistive technologies so old or so rare that they do not have to be accommodated, but to satisfy the ADA an overlay must work seamlessly with the most commonly used assistive technologies.”

    Now it’s Your Turn

    At this point, you might be thinking, “Do I need an accessibility screen overlay for my website?” 

    As you just learned from experts, while you can use a screen overlay to make your website appear more accessible, it’s only helpful to a certain extent.

    Keep in mind that whether or not you use an accessibility overlay, there is still some manual remediation you’ll need to do within your website’s code.

    Before installing or remediating anything on your own, you should know if your website is ADA compliant. Request a free ADA compliance scan today by clicking the link below.

    Request A Free ADA Compliance Scan

    After our ADA specialists scan your site you’ll have the expert information needed to proceed with improving your website’s accessibility.

    As the environment around website accessibility continues to evolve, we want your business protected from an ADA lawsuit.

    Greg McNeil

    May 20, 2020
    216digital, ADA Compliance, Web Design, Website Accessibility
    ADA Compliance, ADA Lawsuit, ADA non-compliance, Website Accessibility, Website Accessibility Tools
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