Ethics in the Digital Accessibility Legal Space: ADA Enforcement Cases or Something Else?

road sign reading "Ethics" against blue sky with clouds

A 177% jump in the number of web accessibility lawsuits filed in federal court over two years. A handful of lawyers filing hundreds of cases, settling quickly, with no public statement about any accessibility improvements. Industry associations looking to roll-back the ADA, state legislatures limiting the right to sue about digital accessibility. So called experts guaranteeing “ADA Compliant websites” in 48 hours for $490.00.

I have been a disability civil rights lawyer in the digital accessibility space for more than two decades. For most of that time, all the lawyers practicing in this space had the same goal: rely on federal and state civil rights laws to advance digital inclusion and give people with disabilities equal access to the digital world.

We and our clients employed various strategies to reach that shared goal: filing state or federal agency complaints, bringing carefully thought out lawsuits, or engaging technology owners in the collaborative process known as Structured Negotiation. And of course, disabled people used (and continue to use) the law each and every day to advocate for digital inclusion before turning to lawyers for help. Each strategy had (and continues to have) its place.

Each strategy was undertaken with the common goal of advancing the civil rights of people with disabilities to create and consume digital content and technology.

No longer.

Into a vibrant and ethical field of law carefully developed over 25 years have come lawyers who appear uninterested in advancing and protecting rights under the Americans with Disabilities Act. Lawyers who, I believe, have seized on the Americans with Disabilities Act as a quick money-maker, with no concern for possible backlash or creating bad precedent.

No concern for actually making websites, mobile applications, kiosks, workplace technology and other digital tools accessible for people with disabilities.

This post shares my thoughts about how to distinguish ethical disability rights cases from litigation I consider unethical. Unethical because it uses civil rights laws (the Americans with Disabilities Act and related state laws) without regard for the very people who fought for that law, organized for that law, and 29 years later still need that law’s protection: people with disabilities too often locked out of the digital world.

I believe we must find the vocabulary to distinguish disability rights lawsuits from other lawsuits — often referred to as drive-by, click-by, or surf-by cases — that are not civil rights suits at all. Failure to find this vocabulary allows bad actors to set bad policy.

Failure to distinguish a civil rights suit from a quick-hit lawsuit with the primary result of enriching a lawyer threatens the ADA at a time it is needed more than ever. That threat is very real. The Supreme Court is now being asked to weigh in on the subject of website accessibility. Last year the disability community successfully fought back against changes to the ADA that would limit the right to sue, and such limitations may be tried again.

Lawsuits are essential to civil rights. Limiting them because of lawyers abusing the ADA threatens civil rights.

Most of all, failure to find the language to say “no” to lawyers who are using the ADA for personal gain hurts people with disabilities.

Every day, disabled people get painted with the brush of “greedy plaintiff” instead of human being needing access to today’s technology. That is the saddest thing of all about today’s digital accessibility legal climate.

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Why so many cases about web accessibility?

By now most people in the digital accessibility space know the numbers: 57 federal web access lawsuits in 2015, close to 3,000 in 2018, more on the horizon for this year. I am frequently asked by the media, clients, disability community members and colleagues why this is so.

People wonder . . .

  • Is it because of the 2017 win for the plaintiff in the Winn-Dixie case, the first web accessibility case under the Americans with Disabilities Act to go to trial? (now on appeal)
  • Is it the United States Department of Justice’s failure to enact regulations, first proposed in 2010, that specifically require web access?
  • Is it because of the recent Domino’s Pizza case, the case that the company is trying to get in front of the U.S. Supreme Court? The Blick Art Supply case, where a 96 year old judge recognized the importance of web accessibility? Or plaintiff wins in a 2012 cases against Netflix and other companies?
  • is it because organizations don’t know what to do?

I don’t think these are the reasons we have so many lawsuits. There have never been ADA website regulations (beyond the 29 year old requirement to provide effective communication) yet we had the precedent setting lawsuit against Target more than ten years ago. While smaller organizations may be unaware they need to do anything, they shouldn’t be. They could easily find out what to do with a little inquiry.

After all, the internationally accepted web accessibility standards — the Web Content Accessibility Guidelines — just turned twenty!

Global giants like Microsoft, Barclay’s, Capital One, Accenture, Bank of America, and many others not only have a commitment to accessibility, but generously share accessibility resources and are proud of their culture of accessibility.

I think a better list of factors leading to the jump in accessibility lawsuits is the following:

  • A strong legal foundation that supports digital accessibility
  • 19 years of ethical advocacy, including thoughtful use of litigation and Structured Negotiation. Did you know the first website accessibility agreement was signed in 2000 in a case my co-counsel, clients, and I negotiated with Bank of America in Structured Negotiation? Read the first web access press release.
  • Accessibility has been (too often) ignored despite the publication of WCAG 1.0 in 1999. Despite the fact that in 1997 Tim Berners-Lee, inventor of the world wide web, said that “The power of the Web is in its universality. Access by everyone regardless of disability is an essential aspect,” Read the 1997 press release with this quote.
  • Every year more of our lives go online with more digital tools + content
  • Every year disabled people have increased expectations that the digital world will be available to them

Into this fertile ground came lawyers with a different approach. Many of these lawyers were not practicing disability rights five years ago. 

I would argue that many of them are not disability rights lawyers now.

Some lawyers active in suing about web accessibility had swooped into other fields of law for a quick profit before moving to digital accessibility. Whenever I lament the state of the digital accessibility legal space to lawyers, they seem to marvel at my naivety. “What surprises you,” they ask? This is the US legal system. This happens in every practice area.”

Maybe so, but it has never before happened in the digital accessibility space.

Lawsuits have played a critically important role in advancing accessibility in the United States and beyond. And Structured Negotiation too depends on a strong civil rights legal foundation that allows people to enforce their rights. But the bottom line today is that many (dare I say most) of the recent web accessibility lawsuits and so-called demand letters are not civil rights suits at all.

How can we tell the difference?

The answer is not a soundbite. The answer requires an honest ethical look behind the legal claims and how they are handled. But understanding the difference is important.

It is true that the web accessibility lawsuit avalanche has drawn attention to the issue of web accessibility. And some of that attention has caused responsible organizations to begin or strengthen true accessibility programs.

But is most of the focus on lawsuits good attention that leads to inclusion?  Is it attention that makes companies want to hire disabled people and build accessibility into their digital properties from the start?

Or is it attention that turns accessibility into something people are afraid of getting sued about, doing the bare minimum to avoid the lawsuit? Or just paying off the lawyers and maybe the plaintiffs with no accessibility improvements at all? What happens to these high profile big number lawsuits once the media spotlight leaves? Who knows? Almost all of them settle with no public announcement of the result, no accountability.

And does law suit attention rile up the haters and leads to backlash? I am afraid that without being able to distinguish one lawsuit from the next, all lawsuits are painted with the same brush.  And that hurts anyone anywhere who has ever used the law to protect rights.

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A Civil Rights Suit? Or Something Else?

red flags waving in the windI’m frustrated with media and certain defense lawyers labeling all digital access cases as “drive-by” or “serial” cases. I’m worried that a handful of lawyers are threatening to roll back the rights of people with disabilities to enforce the ADA and other anti-discrimination laws.

Here are some of the factors I consider when evaluating whether a law suit is a civil rights suit…or something else? Any one factor does not provide the whole picture.

  • Is a quick settlement expected. A small firm filing hundreds of suits a month does not have a business model of improving accessibility: Baked in accessibility takes time.
  • Has there been sufficient research? I know that one of our negotiating partners that has a robust accessibility policy easily findable on its website for more than a decade got hit with a lawsuit that said the company had no policy.
  • Are the results transparent (either through a public agreement or public statement)?
  • Is there follow-through and accountability? True civil rights cases include monitoring to make sure results stick. This is particularly important in digital accessibility where each new release can affect usability.
  • Is there collaboration with the disability rights community?
  • What is the role of plaintiff? Sadly, I have been called by people with disabilities who regretted their participation in certain web accessibility cases once they realized that the goal was not in fact increased access.
  • Is there concern about backlash? Civil rights advocates, plaintiffs, and lawyers are always mindful of the backlash potential of a given strategy. In the digital accessibility legal space, the rush of lawsuits has already lead to backlash in the form of limits placed on filing state law claims. There is a threat to the ADA too.
  • Does the lawsuit give the appearance that disabled people are greedy? Most people with disabilities that I know are concerned about the type of web accessibility lawsuits being filed because of the impression that using the law is just a way to make a quick buck.
  • Does the type and number of lawsuits minimize the impact of real barriers and the work it takes to bake in accessibility? It is concerning when all of accessibility is seen only through the lens of filed lawsuits and quick results. It makes accessibility appear as a checklist; a one and done thing that goes away with a settled case. Digital accessibility takes commitment, culture and resources. An in-and-out lawsuit can rarely (if ever) deliver that.
  • The emphasis on lawyers distorts importance of attorneys’ fees in civil rights cases. Congress decided long ago that people who need civil rights protection from discrimination — including women, people of color, and people with disabilities — typically cannot afford lawyers. When their rights are violated, their lawyers are paid by the organization against whom they filed a claim. This is called “fee shifting” and is fundamental to effective civil rights enforcement in the United States. Lawyers filing hundreds of cases for a quick settlement that primarily consists of attorneys’ fees make a mockery of the hard fought principle of fee shifting — and threatens it in the future.

At it’s 2019 national convention, the National Federation of the Blind passed a resolution that reflects many of the concerns described above. Resolution 2019-09, Regarding ADA Litigation includes the following:

BE IT RESOLVED by the National Federation of the Blind in Convention assembled this eleventh day of July, 2019, in the City of Las Vegas, Nevada, that this organization urge members of the legal community to engage in responsible, ethical, and transparent behavior when pursuing ADA litigation, including contacting targeted entities to try to resolve accessibility issues without litigation where possible and appropriate and to draw up public settlement agreements that outline the specific steps to be taken by an entity to achieve accessibility and the anticipated timeline for those steps to be completed; NFB Resolution 2019-09

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It’s Not Just Plaintiffs — Plenty of Blame to Go Around

With the dramatic increase in digital accessibility lawsuits, has come bad behavior on the defense side as well. Most counsel that represent organizations being sued are counseling them to work on accessibility. They conduct the defense in ethical and appropriate ways. But as with the plaintiffs side of things, there are a handful of defense lawyers who do things differently: Attacking the ADA; attacking responsible plaintiffs (and their counsel); causing unnecessary delay and unfounded excuses, often leading to settlement non-compliance.

In Structured Negotiation I value each of the defense firms that I have worked with over the years. I know the lawyers to be ethical and fair. But other defense counsel have contributed to a legal space that is not about problem solving, not about digital inclusion.

Same too in the expert space. Many organizations need outside expertise to develop and implement a robust accessibility policy. Many ethical experts are available. But into the fear-based environment created by the not-civil-rights-lawyers has come an industry of “experts” who are not experts at all. People who offer a quick fix that does not fix. Who sell so-called solutions that by-pass the hard work needed to build an accessibility program. Who prey on the fear created by lawyers surrounded by red flags. Read my post about the danger of “fear” as an accessibility motivator.

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Best Practices in the Digital Accessibility Legal Space

At the first annual Digital Accessibility Legal Summit, held in Anaheim in March of this year, plaintiffs’ lawyer Tim Elder and defense/compliance lawyer Kristina Launey shared the stage and offered wisdom from both sides of the table.

Together, Kristina and Tim developed the best practices shared here with their permission. I agree with what they’ve written. I know that the plaintiff-side best practices are inherent and essential to practicing Structured Negotiation, the collaborative dispute resolution method that has advanced digital accessibility for over two decades.

As Tim and Kristina reminded the audience “Not all these tips apply to all parties or circumstances, but are items that have come up for either of us (not necessary both of us) that we felt warranted mention.” I share them here as Kristina and Tim presented them. Anything added appears as a “Note from LFLegal”

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Best Practices: Lawyers Representing Disabled People

    1. Send a letter before filing a lawsuit—most companies hate / do not want a lawsuit on the public record
    2. Consider Structured Negotiation—and stay true to SN’s principles [Note from LFLegal: I can’t summarize my whole book here, but a list of the top Structured Negotiation principles would include: trust, transparency, patience, appreciation, client-centeredness, recognizing the value of small steps, willingness to listen.]
    3. If you sue, don’t do a lousy copy and paste job in a form complaint [Note from LFLegal:  Some of the new lawyers in the space simply copy a complaint and change the name of the defendant.  In Mendez v. Apple a federal judge in NY frowned on the practice, writing: “those who live by the photocopier shall die by the photocopier.” The plaintiff had not alleged any specific barriers on the site she was suing about.]
    4. Help the company understand what real barriers your client encountered that actually prevented him/her from accessing a good or service of the public accommodation
    5. Understand that some companies—even those that are large and seemingly sophisticated—may not be aware of this issue; or may have large structural hurdles to overcome. Do not mistake this for opposition.
    6. Do your homework and understand the severity and nature of the access barriers in your case—don’t unnecessarily invest six figure litigation budgets on six-dollar barriers.
    7. Be prepared now to try the case without relying on discovery because technology changes quickly and evidence of digital information easily spoils.
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Best Practices: Defense and Compliance Attorneys

      1. Know the law. If you don’t, associate with an attorney who does.
      2. Always respond in writing to a demand letter well in advance of the indicated deadline—many Plaintiff’s counsel will agree to reasonable extensions of time to suspend a filing if there is at least some attempt at communication.
      3. Never respond to a demand letter with intimidation: many Plaintiff’s counsel will jump on the chance to litigate if the response to the demand letter is aggressively defensive.
      4. Don’t respond to a demand letter with a statement that the matter is moot and no further conversation is needed if there is any chance of catalyst theory fees or damages claims.
      5. Call the Plaintiff’s attorney and develop a connection—you are guaranteed to learn something useful for your evaluation of the case.
      6. Consider proposing structured negotiations, ADR or even arbitration to a Plaintiff who is unfamiliar with the process—giving some indication that a meritorious demand will include reasonable fees may appease some Plaintiff’s attorneys anxiety to rush to file the case.
      7. Understand the technical issues, and when you need to bring in a digital accessibility consultant.
      8. Be aware of attorney client privilege application to expert engagements.
      9. Educate businesses on the state of the law, uncertainty, and practical considerations.
      10. Approach plaintiffs’ counsel with an open mind and cooperative attitude while managing client concerns.
      11. Consider a meeting in which your client speaks directly with the Plaintiff and validates any poor customer service that was provided and communicates the value of the Plaintiff in the conversation (you’ll soon find out which Plaintiffs are primarily motivated by money damages and which ones simply want to have their concerns valued).
      12. If you litigate, don’t use discovery as a substitute for an investigation that could have been done earlier.
      13. Help the Plaintiff understand any true complexities or challenges unique to your specific business operations.
      14. Budget time for counsel to ensure that settlement compliance is timely and above or beyond the expectations.

Following these best practices should fix one of the biggest problems in the digital accessibility legal space today: the lack of transparency and the enormous number of lawsuits filed (even as class actions) and settled with no statement of how and when the technology will be remediated.

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Best Practices: Accessibility Consultants

As I wrote in this year’s CSUN Wrap-up, having a bad expert in a lawsuit can cost organizations. In a case against GNC it made a company lose the lawsuit filed against it. Organizations must carefully vet accessibility consultant before hiring, whether to help with a lawsuit or to proactively develop a strong accessibility program.

There are too many so-called experts in the field right now: organizations must do their research, get referrals, interview two or more consultants before hiring anyone. Just in the past few months up pop companies claiming that they can fix a site in two days for $500.00. They cannot.

Here are the best practices for consultants shared by Tim Elder and Kristina Launey at the Legal Summit:

      1. Don’t try to be lawyers
      2. Don’t be sales-y; educate potential clients & understand their business
      3. Be succinct in proposals & be clear in what you’re offering
      4. Minimize pre-engagement “scoping” calls
      5. Help the client figure out what it needs, and what it doesn’t need
      6. Be clear on 2.0 vs 2.1 and what assistive technology/browser combinations are included and why
      7. Respect attorney/client privilege considerations
      8. Formalize engagement with a clear contract outlining only services included, not a signed proposal
      9. Help clients with prioritization & understanding when their websites are – in your expert opinions – accessible.
      10. Don’t be greedy —your reputation for gouging companies in legal trouble will travel among both defense and plaintiff circles.
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Lawsuits that use the ADA to enrich lawyers hurt disabled people

Last month a friend of mine was denied service at her local post office. The reason seems unbelievable in 2019, but here’s what happened: the location has an accessible (lower) counter so that people who use wheelchairs, like my friend does, can easily transact their postal business. When the visit occurred, the employee charged with staffing the lowered counter was on a lunch break.

Shockingly, the other employees (including a supervisor) refused to step over to the lower counter to serve a wheelchair user. My friend was not able to reach the higher counter, and close to 15 able-bodied people were served ahead of her. Each time she reminded them she was next in line, the clerk said she would only be served at the higher (inaccessible) counter.

The postal clerk’s conduct and my friend’s insistence on her right to be served of course ended up slowing down the line. During the wait, another customer shouted “this is a left-wing conspiracy- you people just drive through and do scams– I’ve seen it on the news.”

by “You people” the customer was referring to people with disabilities. His comment sums up why I feel the need to find the vocabulary to distinguish digital accessibility lawsuits that are based on civil rights from those that are not.

People with disabilities are the ones hurt by a climate that sweeps all civil rights claims into a pile that says disabled people are scammers, greedy, other. That their lawyers are in it for one reason only, and not a good one.

I know first hand how the media loves to jump on the handful of bad actors in the disability rights legal space to the detriment of disabled people and not-disabled-yet-allies who seek to enforce, protect, and advance of the civil rights of people with disabilities. I was left on the cutting room floor after a great 60 Minutes interview with Anderson Cooper; swapped out for an ADA hit piece about drive by lawyers in the architectural space.

The disability community fought long and hard to build the strong foundation that supports digital inclusion both in the United States and around the globe. That struggle continues, supported by many public and private organizations both large and small that have embraced accessibility and inclusive design as a way of doing business.

I wrote this piece out of concern that the forward momentum we are experiencing in digital accessibility is threatened. Out of concern that unethical use of the ADA will undermine hard fought rights under the guise of enforcing those rights.

Digital accessibility is a civil right of people with disabilities around the globe. The ADA needs to be enforced and strengthened. Let’s not let unethical lawsuits make us forget what the law is really about.