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ADA Compliance: How One Client Avoided A Costly Lawsuit

by | Sep 29, 2020 | Featured, Website

What do you mean you’re getting sued for your website not being ADA compliant?

About seven years ago I received a call from my client Bertrand Hug who is the Owner of Mille Fleurs and Mister As Restaurant in San Diego.  He asked me in a thick French accent, “Drew Baby is our website ADA Compliant?”  I was caught off guard because I had heard about ADA compliance for facilities but never for websites.  He went on to explain how some of his friends in Florida had started to receive summons for lawsuits claiming that their website was not ADA Compliant.  In addition, they were being forced to settle these cases out of court for upwards of $15 to $20k.  

That started me on my journey to learn exactly what ADA Compliance is and how best to protect my clients from a malicious suit like this.  So what is ADA compliance and how does it affect your website?  ADA and WCAG compliance help make your website accessible to people who have disabilities.  By making your website so that people with disabilities can view, navigate, consume and interact with your website you are essentially opening your site to millions of new users.

What makes a website ADA compliant?

Making sites accessible is accomplished by adjusting the way that the site is built and best practices to better allow tools or readers that are used by this community to easily read your website.  In addition, the site also has the ability to be manipulated so that it is easily read by assistive technology.  For example, if you have a hard time seeing certain colors, the ability to adjust the color and contrast of a webpage is critical.  If you are interested in the full rules of engagement here is a WCAG Checklist that you can use to check if your website is ADA compliant.  

If you perused the checklist you can see that there are a lot of things that need to be considered.  The biggest challenge that you face when making a website ADA Compliant is there is a tremendous amount of manual labor.  The first few sites that we brought up to compliance took us well over 200 hours to complete.  So ok great!  Manual ADA compliance costs as much as creating a website from scratch.  The other awesome fact about going the manual route is that as soon as you make a change to your website, such as add new content, or install a new plugin you risk falling out of compliance.

 

Keeping ADA compliant

Yay, we learned how to make a site ADA compliant, and Mister A’s Restaurant was our very first implementation of our new found skill.  But the whole time that we were working on their site, in the back of my head I knew as soon as we were done it was very likely that they were going to fall out of compliance.  I began to look high and low for another way.  

I then came across a software that seemed to be too good to be true.  The claim they made was with one line of code, your website would be ADA WCAG 2.1 AA compliant, in addition to S508, in as little as 48 hours.  What the hell?  In addition it was run off of Artificial Intelligence.  I reached out to the company and arranged a call with their sales team as well as their CEO. We went through several demos and I was able to see firsthand exactly how this technology worked.  

One of the coolest things that I witnessed was the software intelligently navigating through flat images and interpreting what the alt tag should be.  You have got to be kidding me right?  The software was so elegant, so compact, and extremely effective.  In addition the AI crawls the website consistently looking for new issues to stay in compliance for accessibility. The code is also consistently updated to surpass the requirements as set by the laws and guidelines because the mission is to truly make the webosphere accessible to all.  

I bought into what they were selling and became an advocate, and affiliate partner of their technology.  I then took this new technology and pitched it to every one of my clients.  “Here is an affordable way to protect yourself from an ADA lawsuit!”  “Hey check out this tool, you can reach an additional million(s) of people by installing this on your site!”  Only a few of our clients jumped on it including Mister A’s.

 

The lawsuit

So why in the hell did Mister A’s get served for a non-compliant website?

That is exactly what I asked myself as I read the text message from Ryan, Mister A’s Director of Operations.  I had been on a sales call that was going extremely well and my call waiting began to ring, which I sent to voicemail.  I quickly texted Ryan, “Hey finishing up a call, will call you shortly.”  His reply “No Problem.  Call me when you can.  Just got served papers for not being ADA compliant.”  Holy Shit!  My face became flush, I could feel my blood pressure rising.  I was noticeably shaking.  Had I failed my client?  This is complete bullshit!  Ok, calm down, come back to reality.  We did everything that we needed to do, these guys clearly had made a mistake.  I was so frustrated though.  

We had worked so hard the previous year to make sure that not only were they ADA compliant, but remained ADA and WCAG compliant as we added new content. I was also frustrated because these jerks had served our client during COVID – 19.  Mister A’s Restaurant had been closed for about three months and had just been allowed to open their doors to serve to a limited capacity.  Talk about kicking a company while they are down.  I was ready to go to war.  I called my client and told him I was ready.  I offered $10k of my own money to take these guys to task.  He politely declined.  He then went on to explain that in some of the recent Association meetings the leadership had brought up the fact that there was one law firm filing complaints on behalf of one client against multiple restaurants. Some of those restaurants had already settled for upwards of $20k.

 

Proof of ADA compliance

I went to work.  I contacted my partners and let them know of the situation. The next day we had a packet of data which helped to demonstrate that Mister A’s restaurant website was 100% compliant.  In the package that we put together we included the following:

  1. Compliance Audit.PDF – a professional compliance audit, showing code examples, alongside plain explanations, how the website covers the most important requirements, with the final verdict that the site is compliant with WCAG 2.1 level AA success criteria.
  2. Two third party reports – screenshots of test results from two industry-leading testing tools. One called aCe and the second one is called “WAVE” which are considered the industry-leading testing tool. Both tools showed the website is compliant.
  3. Visual Mapping.JPG – a screenshot from the site that mapped the most notable accessibility features we are implementing. This is basically demonstrated how the site looks for a blind user with a screen-reader.
  4. Purchase Invoice.PDF – The original purchase invoice of the service, showing that they hired an accessibility service company, starting at a certain date.
  5. Compliance Overview.PDF – an elaborate explanation of how the website achieved compliance of its various components, and breaking down the compliance requirements, and how the website covers them all the way down to code level, including code examples.
  6. Violations Request Master.XLXS – an excel template that we sent to the party making the claims to document the violations they believe they have found in an understandable and manageable format. This was intended to enable a proper review of their claims if needed.
  7. Accessibility Statement.PDF – this is a requirement for complying with WCAG 2.1 and it provides general information on the accessibility level of the site. The statement also appears inside the accessibility interface that is on website by default.

Finally, we also included some language that the attorney could use in their response to the Plaintiff. 

 

The case was dropped

After we submitted this evidence to the plaintiff attorney, the case was dropped about one week later.  Although the case was fully verified and supposedly their client filed a complaint to the businiess, it was clear that the case was bunk from the get go.  The fact of the matter is that this was a blanket lawsuit that is used to intimidate the recipients into settling for $10-$20k depending on how much they believe they can suck out of you.  Even though we had done everything that was necessary to position our client in front of this issue we were still served.  My client still had to pay their attorney to reach out to the crooks and fight the case.  It was cheaper than $10k but it was still money out of their pocket. 

Oh, and by the way, our ADA Compliance proof was so good that my client’s attorney reached out to us to help them get their website in compliance.

So how did Mister A’s get sued?  What we think is going on is that the law firm is running a software that mass visits websites and looks at the code on the backend to make a determination as to whether the website is ADA compliant or not.  The claims are typically vague, misleading, and inaccurate.  The site is not tested by a web accessibility professional, rather, by someone that lacks industry knowledge, or by using automatic testing tools that are designed for developers to work with while coding websites, and not for determining ADA compliance. 

 

How do I avoid getting sued?

The short answer is, as I start jury duty today, we live in a sue-happy world.  It is absolutely impossible to avoid.   But what you can do is protect yourself.  Make sure that your site is ADA and WCAG compliant.  That way if you do find yourself in this situation, you are protected.  If you want a fast and easy way to get compliant use this link to our ADA WCAG partner and get signed up.  If you want a partner in this journey, we can help you navigate through the waters. You can purchase the product through us.  We will customize the widget and install it on your site.  And if you ever fall victim to a website ADA Lawsuit we will be there lock in step with you.

Thanks for reading.  And Thanks Bertrand for asking that question 7 years ago.

If you are ready to get started click here: Get ADA Compliant

Drew Harrill
Creative Director

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