What should you do after receiving an ADA demand letter stating that your organization’s website or app is inaccessible to people with disabilities?
This information presented here is for reference purposes only and should not be construed as legal advice; you should consult a lawyer before taking action related to a demand letter.
What is an ADA Website Demand Letter?
A person or organization may send a demand letter to a business or organization that operates a website that is inaccessible to individuals with disabilities.
The demand letter may request that the recipient make the necessary modifications to the website to bring it into conformity with the applicable accessibility standards and regulations, as well as a payment to compensate any resulting damages or costs.
It is essential to highlight that demand letters are not legal documents and lack legal standing. However, they can be an effective tool to discuss the need for change and discover a solution to an accessibility issue.
What should I do after receiving an ADA Demand Letter?
As soon as you receive an ADA demand letter, you should contact legal counsel so they can advise you on the steps to take to protect yourself and your business.
The following measures must next be taken by either you or your legal counsel:
- Assessing the validity of the demand letter
- Verify the accessibility concerns highlighted in the letter
- Do a full accessibility audit of your digital assets
- Publicly communicate your commitment to accessibility
- Adopting a comprehensive digital accessibility policy
1. Assessing the validity of the demand letter
A demand letter is not the same as an accessibility lawsuit, but it could be the first step in one and should be carefully looked at by your lawyer. Consult your attorney to determine the letter’s validity. Here are some considerations to keep in mind while reviewing it:
Law firm: Does the plaintiff’s law firm have a reputation for filing real claims based on valid mistakes, or is it known for filing a lot of lawsuits to get quick settlements?
Standing: Does the plaintiff have the right to file a lawsuit? Do they have personal jurisdiction to sue you, and/or can they establish they were affected by the letter’s claims?
Are the allegations made against you detailed enough for you to comprehend the nature of the problem and its location on your digital property? This knowledge will assist you and your attorney in determining the best course of action.
You and your legal counsel will ultimately determine how to interpret the research findings at this stage, but a robust accessibility solution can assist with this evaluation by providing particular information from recent ADA filings.
2. Verify the accessibility concerns highlighted in the letter
Once you’ve looked at the letter and made sure the sender is real, it’s important to understand the scope, technical accuracy, and severity of the access problems it points out.
Are the claims applicable to the specified digital property and technically accurate?
In other instances, a plaintiff’s law firm would send form letters to numerous potential defendants, alleging the most prevalent accessibility difficulties, which may not be actual hurdles to your digital experience.
If the claims are true from a technical standpoint, do they get in the way of your access to content and the way your digital experience works?
Even if there is a technical violation of WCAG standards, the user may still be able to use the site.
Are the aforementioned issues still present, or have they been resolved or replaced?
Noting this in a potential response may reduce the plaintiff’s case and/or motivation to proceed.
Are the allegations made applicable to the plaintiff’s specified disability(ies)?
In relation to personal standing, the alleged access restriction may affect the plaintiff’s standing to suit.
Are the issues under your control, or is a third party, such as your content management system, responsible for their resolution?
Understanding the cause of problems and the extent of your organization’s control over them helps facilitate your response.
Are the cited issues the result of false positives?
Some demand letters, for instance, will include pictures from an automated scan to highlight the number of problems found in your digital experience. However, these “errors” may include false positives, which are technical faults that are frequently discovered during an automated scan but do not constitute an accessibility barrier.
3. Do a full accessibility audit of your digital assets
There is a chance that your digital experience involves accessibility issues that are not specifically named in the demand letter. Other digital properties you possess that aren’t specifically mentioned in the demand letter may also carry restrictions. A full audit of all your digital experiences will show you these problems, putting you on the path to making your site more accessible to people with disabilities and making it less likely that you’ll get demand letters in the future.
A thorough audit should include not only a list of all discovered flaws but also a description of how to solve them and a ranking of their severity. This ranking will assist you in prioritizing remedial efforts. As you implement corrective measures, you can examine and revise your accessibility road map to track your progress over time and reduce the likelihood of a future accessibility litigation.
4. Publicly communicate your commitment to accessibility.
You have committed to correcting the errors outlined in your demand letter. Now is an excellent moment to publish an accessibility statement on your website and/or other digital experiences to provide a clear, public notice.
This not only demonstrates your dedication to accessibility, but also provides a way for visitors to communicate with you about any accessibility issues they may be encountering without having to resort to writing you a demand letter.
This is not only accommodating to clients or people with disabilities, but it is also a legal best practice based on DOJ criteria from previous private enforcement actions.
5. Adopt a digital accessibility policy.
As you continue to fix problems along your accessibility roadmap, you can use what you’ve learned to improve and strengthen your company’s digital accessibility policy. This kind of policy sets up rules and guidelines to make sure that your digital experiences are accessible to people with disabilities, whether they work for your company or just want to use your website or app.
Over time, you will need to ensure that this policy is implemented to all of your digital assets, including your staff intranet and any digital communication tools.
In the end, a complete accessibility program may include monitoring and reporting tools, as well as coding standards that say how digital assets should match up with WCAG criteria. As your organization’s policy is being made, it should be shared with all relevant departments and accompanied by training for staff. In DOJ enforcement actions, training for web staff on accessibility is a consistent requirement.