I received a message on LinkedIn. And I thought the person asked a good question. And it’s one I’ve come across multiple times. So I’m going to read through the message.
And this is just a slight- just slightly paraphrasing. Hey Kris, I am working with a client; we received a letter from their old web development agency.
To me, it looks like a canned email saying their old site was non-ADA compliant, and they are at risk of being sued.
My question is, and I can’t seem to find the answer. If we conducted an audit, and we are currently rebuilding our client’s website, are they at risk of being sued, if we are currently in the process of remediation?
It doesn’t seem to make sense to fix the old website if we are in the process of building a new version that is ADA-compliant. And so the first, my initial response, is there’s an ever-present risk, right?
We can always- we’re always at risk of being sued because anybody can sue anybody for anything. But then from there, we ask, is there merit behind the litigation?
And in this case, we need to think of the Americans with Disabilities Act in terms of absolutes. Are you in compliance? Or are you not? And there are exceptions under the ADA.
But still, it comes down to- given those exceptions. Are you in compliance? Or are you not? And I can tell you, practically speaking, when it comes to serial litigants in website accessibility litigation? There’s definitely no, there’s no grace period; there, no warning it. You know, once it happens, it’s there.
And they’re not. I’ve seen a number of times where people respond back. And it’s- they’ll say, we’ve done all of these great things. We’ve had an audit performed; we are currently working on our website, we’re improving, we’re going to incorporate all the WCAG 2.1 AA success criteria, be fully conform it, and what the, what the plaintiff’s lawyer will say is, hey, that’s great, we really appreciate it. You’re doing good work; however, you still violated this law.
And our client has been harmed, you are responsible for damages, attorneys fees, we will, you know, and then it goes on down the line into a settlement. So the takeaway here is that we’re really looking for results and not effort, not anything that is leading to the results, but the results themselves. So think in terms of absolutes.
Are you in compliance, or are you not? And of course, this entire channel is dedicated to this gray area and navigating through whether or not your website is ADA compliant or would be considered ADA compliant, and how to prevent litigation. But when it comes to, hey, we’re in the process of working on this. Are we still at risk? Absolutely.
