In-Depth Answer: What should I do when I’m approached with a technology accessibility complaint or legal action?

Why is this a legal action?

What if I could drive through red traffic lights with impunity? What if I sped up just enough to get through just as it was turning red? I’ve never crashed this way before!

All laws are brought into effect when members of society are doing something that has a detriment to others. That’s why we have red light laws and, and along with those laws come red light cameras, and red light violation fines. That’s also why we have laws on non-discrimination on the basis of disability, and along with those laws come legal requirements and lawsuits against individuals and organizations that flout the law. Laws related to digital accessibility have come to be understood and interpreted by the courts as civil rights law. In order to have equal opportunities in education, employment, and commerce in the modern world, courts increasingly recognize the rights of people with disabilities to have access to digital communications technologies. Drivers are protected against getting hit by drivers who have little regard for public safety. People with disabilities are protected against people who ignore widely available knowledge, tools and techniques for making digital content accessible.

This article is about what to do if you have received a complaint or a legal action (a.k.a. ‘demand letter’) regarding the accessibility of your Information and Communications Technology (ICT).

Note: We have published a companion article on what proactive things you can do to avoid lawsuits in the first place (see related sections of the Switchboard, below.)

Step one: Counsel

Before you call an accessibility consultant, call a lawyer. Legal counsel can help you understand if any laws are in fact applicable to the complaint or legal action. This understanding will guide you through the process of figuring out what your legal obligations are, and how to respond.

Is it an ‘actual’ or a ‘boilerplate’ problem?

There are actual clients who have actual problems obtaining specific ICT services online. The process might go something like this:

1. The client has a problem accessing ICT services, and tries to work with customer support to resolve it.
2. Customer support is unresponsive, so the client elevates their issue further up the company chain.
3. Those further up the chain are unresponsive, or flat out deny service. The client makes a formal complaint.
4. The complaint is either dismissed by the company, or it is outright ignored. As a last resort, the client obtains legal counsel and files a lawsuit against the company.
5. A demand letter appears.

In general, experts who work in the accessibility field say that lawsuits should be regarded as a last resort tactic when all other attempts have failed.

In recent years, there have been a number of legal firms sending out hundreds of boilerplate accessibility demand letters to companies on behalf of ‘clients’. Instead of starting with customer support, the process might go something like this:

1. A demand letter appears.

This is the equivalent of hiding red light cameras, not telling anyone about their existence, not making any attempt to warn drivers of consequences, and then sending them fines in the mail for violations. Reasonable persons can look at the boilerplate and compare it to the actual problems and draw their own conclusions about the validity of the complaint. The recent proliferation of such tactics has been seen by several courts as frivolous or without serious merit.

Come to grips with the technology problems and available solutions

Regardless of the source of the problem that resulted in the client contacting customer support, there is a technological solution. Web searches should be able to reveal solutions, but care should be taken to fully understand the problems in context and the impact on the target audience. For complex problems, what may on the surface seem like a quick fix may create additional problems. Accessibility professionals can help identify technology solutions, and in the same way, investing the time to find the right accessibility professional can pay dividends (see ‘How do I find a knowledgeable consultant?’ in the Related Sections, below). Laws are only created to help enforce the implementation of available solutions. For example, before the implementation of the Americans with Disabilities Act in 1991, ramps into public buildings and automatic door openers were available but rare, but since then they have become commonplace. Now, available technology solutions for ICT accessibility problems are widely available but still not widely implemented, and hence the increased risk of receiving complaints or even lawsuits.

Come to grips with the non-technological problems, and available non-technological solutions

Because ICT accessibility technology solutions are not yet universally implemented, technology problems arise. But, given that the technology solutions are available, the reasons why they are not implemented are usually non-technical. That is, having an organizational make-up and accompanying organizational processes that don’t proactively consider or include the population of people with disabilities as customers or employees inevitably leads to technological problems experienced by people with disabilities. Conversely, implementing inclusive practices within an organization (accessibility training, accessibility resources, accessibility expertise, for example) inevitably reduces the likelihood that people with disabilities will experience problems of a technical or a non-technical nature.

In recent years, more and more publications are addressing these non-technical aspects of organizational behavior. (The Accessibility Switchboard guides and resources are designed to help organizations become more inclusive in their practices. See Related Sections, below.)

Work together to implement solutions

Initially, complaints typically concern the question of equitable access. That is, people with disabilities just want to be able to do the same things that nondisabled people can do (online banking, registering for classes, checking medical records, etc.), even if it requires a different-though-equitable method of access. If problems can be dealt with early on by customer support first, and management intervention if necessary, then the problem may not even elevate to the level of a complaint. When the complaint escalates to a lawsuit—because of push-back along the way and accompanying allegations of violations of the law—the client may well be seeking not just equitable access, but redress for the perceived imposition(s) on their rights. As the process goes on, the associated consequences and costs—in terms of personnel time, legal fees, negative publicity, and so forth—increase. This is why complaints should be generally regarded as gifts to companies—because they can be addressed and resolved early in the process—rather than something that should be avoided, delayed or dismissed.

Note: The question of ‘different-though-equitable’ should take account of the availability of technological solutions. For example, proposing that telephone support is an equitable solution for an inaccessible website isn’t likely to find legal support, because it is easily demonstrated that websites can be made directly accessible. A better interim solution is to agree upon a plan (e.g., “As a stop-gap, we agree to offer free telephone support this month, and are working to implement an accessible website solution by next month.”)

Experience also shows that a collaborative approach to problem solving between the organization and the client experiencing the problem(s), and their respective legal teams, can make the process less costly and keep the problem(s) outside the court room.

An ounce of prevention…

This article is intended as an answer to help with reactions to complaints. During or immediately after any response may be the best time to discuss proactive measures to avoid future complaints and legal action. If one person makes a complaint, it is a good bet that this is not your only accessibility problem. If you are already facing legal action as a company, it may well be worth your time to systematically address accessibility problems proactively rather than focusing only on the issue(s) that are initially raised in any demand letter. (See ‘LEGAL (PROACTIVE) Q&A’ in the Related Sections, below.)

Summary

Given that there are (a) established accessibility solutions for technical issues relating to ICT, and (b) established accessibility solutions for nontechnical issues, the process will usually be one of finding out why solutions aren’t in place now, and what solutions can be implemented in a reasonable timeframe and budget. Consequently, our key take-away points for those on the receiving end of complaints and legal actions are:

• The sooner problems are addressed, the lower the possible consequences;
• Fix the technology problem(s);
• Fix the organizational (non-technical) problem(s); and
• Implement measures to reduce the likelihood of recurrence of the specific problem, or similar / related problems in the future.