ADA lawsuits alleging that websites, mobile apps, and certain digital content (such as video) failing to meet WCAG standards are running at full steam, and with an array of court victories and high-profile settlements paving the way, many websites are an easy target. In 2021 alone, thousands of federal and state lawsuits were filed. The top states where ADA website lawsuits have been filed include New York, California, and Florida. New York more than doubled second place California, with its Southern District being most active. In addition, there are private settlements taking place daily, that are harder to measure, and never make their way into the count.
Most often, demand letters are being sent directly to properties, threating litigation unless settlement demands are met, including a payment to the party that could not navigate your website with a screen reader and brail keyboard. There is no question that receipt of demand letters far outnumber the federal and state lawsuits being filed across the industry. Most demand letters include a list of items for you to comply with, such as training your web developers on accessibility compliance, agreeing to bring your website into WCAG compliance within a certain period of time, and of course a monetary settlement to the damaged party, usually in the $5,000 to $20,000 range.
Website accessibility litigation is not anything new, it started over 20-years ago. But long before a lawsuit walks through the door, a demand letter is usually sent on behalf of users with vision impairments, alleging your website is inaccessible with screen reader software. It is estimated that over 250,000 web accessibility demand letters are sent a year, so don’t feel like you were singled out, much of the digital world remains inaccessible to people with disabilities – making it fertile ground for litigation. Many of these demand letters will allege you violated the Fair Housing Act, as there are a few hooks into some state and federal laws, such as the Unruh Act in California.
The first step to take when receiving a demand letter is to review its validity and make certain the claims being made are relevant to your website. Bring in an accessibility expert to help you determine how to respond and take any remediation steps to correct issues that surfaced in the letter. Contact your website provider to fully understand what they are doing for website accessibility compliance, and compare that information against the letter you received, especially what version of WCAG your provider followed when building the codebase for the website. Whatever direction you take, avoid solutions that offer to fix everything with a simple line of code, such as overlay widgets.
To avoid litigation, many website operators have turned to quick fix solutions, such as accessibility widgets. Think of those little icons at the bottom of a webpage that deliver tools for disabled users. The problem is these icons now serve as a red flag and are the new lawsuit magnet. Overlay solutions are essentially plug-ins that detect accessibility issues directly on a webpage and attempts to repair them in real-time, instead of within the web code as required. The inadequacies of accessibility overlays are common knowledge in the technology industry, with most experts agreeing they’re only capable of detecting 20 to 30 percent of issues occurring on a website, thus leaving 70 to 80 percent of the issues on your website vulnerable.
One of the biggest issues that accessibility widgets cannot remedy, is unlabeled or mislabeled form fields. Forms are the heart and soul of completing a transaction, such as creating a guest card, scheduling a tour request, or filing out an application in the multifamily housing space. Beyond these shortcomings, they are known to interfere with screen readers and have experienced issues in certain mobile environments. These reasons have led to website accessibility lawsuits being filed against companies using overlay widgets on their website. In these lawsuits, it was stated that the widgets do not improve accessibility and ultimately, serve as a barrier to visually disabled persons.
According to a recent study by Forrester, it is estimated that the average cost of an accessibility lawsuit is $100,000, which includes legal fees, settlement fees, and reparation costs to change the website in line with accessibility requirements. Beyond avoiding the costs of litigation, accessibility pays off in many other ways as well, such as demonstrating your commitment to prioritizing inclusion and diversity. And, the benefits do not stop with public perception, as the code that lays the foundation for true accessibility speaks loud and clear beyond screen readers.
Boosting your SEO performance is the other benefit. With Google’s Page Experience algorithm update, which Google plans to fully roll out to mobile and desktop by end of this month, the search engine giant plans to evaluate your website, in part, by how accessible the content is to the user. Just like great designs, workflows, and experiences have consistently evolved, so has the need for websites to provide accessibility to all users. With search engine positioning now at stake, the benefits are clearly outweighing the costs to become compliant.
Achieving digital compliance is a massive undertaking, it is also not a one and done task, as WCAG is constantly being added to, with many of its aspects open to interpretation. In addition, there are currently over 400 World Wide Web Consortium members that contribute to creating an array of guidelines, code examples, and standards to the WCAG guidelines. The core set of features you must achieve are, keyboard navigation, where someone can navigate your site with only a keyboard, and the ability for a screen reader to speak your content. These are core basic elements, but there is so much more, such as color contrast, image descriptions, focus indicators, and navigation descriptions.
As our industry is specialized, and most apartment communities utilize a provider to deliver these services, it’s important that your provider is leveraging technology that can be mass updated – such as platform technology, not just a series of one-off websites. A platform will allow changes to be unified across your entire online portfolio at once. This will ensure that your property-level websites, forms, applications, portals, and payments are compliant and updated together – not one by one – which are cost prohibitive, become error prone, and are hard to deploy ongoing updates to, which leaves room for compliance vulnerabilities during the process.
Demand that your provider is compliant, ask for details about their procedures and ability to update code frequently. Take the time to have a deep conversation about how they are testing their code, and what they are doing to stay current with the rapidly changing WCAG guideline. Don’t fall for the quick-fix overlay widget solution, there were hundreds of lawsuits filed over this last year alone. Remember – you are the one at risk here. Also, keep in mind that it is our responsibility, not only in the housing industry, but as a society, to ensure that no one is left in the dark.
Download our latest whitepaper to learn more about ADA compliance for your apartment website.
Kerry W. Kirby is a global entrepreneur, technology innovator, philanthropist, and the founder of 365 Connect, an award-winning technology firm within the multifamily housing industry. Over the course of his career, Kerry has been the recipient of an array of highly acclaimed awards, including the esteemed Louisiana Governor's Technology Award. He has been named to the Silicon Bayou 100 List of most influential entrepreneurs for nine consecutive years and has received a prestigious Titan Entrepreneur Award for his technological achievements. An acclaimed speaker, author, and award-winning podcaster, Kerry has appeared on the BBC Digital Planet program, NPR News, and various media platforms and outlets. Kerry has contributed to an array of articles and studies on the convergence of technology in the rental housing industry.
Kerry serves on the Board of Advisors of Rainbow, a national nonprofit organization that provides service-enriched housing programs for affordable housing communities across the country. He also serves on the Board of Advisors of the Multifamily Women’s Summit, an event that allows women to strengthen their expertise, influence, and professional network in the multifamily housing industry, and is Chair of Technology Initiative for the Multifamily Innovation Advisory Council, a private, members only group focused on assisting owners and operators of multifamily communities by reducing risks associated with vetting new technologies and implementations.
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