I’ve been working in the accessibility field for over 20 years. I’ve worked as an expert witness in numerous ADA cases, performed scores of accessibility audits, trained well over 1,000 developers around the world, and consulted for some of the biggest public and private sector organizations on earth. Along the way, I’ve worked for both plaintiffs and defense.

I’ve written twice on this topic, once in 2015 and another in 2016 and both of those posts are still pretty good, but I wanted to write a new version with some new information and key recommendations.

Since 2016 there’ve been between 8000 and 9000 web-related ADA cases filed every year. Let’s look at how to address a new lawsuit. Nothing in this post is meant to be legal advice. Instead, I’m drawing from my own experience in helping the defendants deal with their management of accessibility.

Lawyer Up

The first thing you want to do as soon as you’ve received service or a demand letter is find a good lawyer with experience in defending ADA cases. While you may already have a lawyer you work with on other business matters, or maybe even have your own internal General Counsel, it is vital that you find someone with specific experience in these types of cases.

One firm I’ve worked with a lot is Seyfarth Shaw. If your case is filed in New York, contact John Egan: John W. Egan (JEgan@seyfarth.com).  I’ve worked with John in the past and he’s skilled, professional, and ethical. In California, contact Kristina Launey, (KLauney@seyfarth.com). If your case is not filed in New York or California, that’s ok, Seyfarth has excellent lawyers throughout the country.

Although I don’t have direct experience with them, Dentons and Jackson Lewis also have good reputations for defending ADA cases. There are others who specialize in these cases as well and it is important that whoever you use specializes in defending these cases. One of the biggest reasons to do so is because they will probably already have prior experience with the judges and plaintiffs’ attorneys and will probably know a lot more about how to deal with the case as a result.

Ready Your Inbox

A large amount of business at accessibility companies comes from helping companies deal with the ramifications of their lawsuit. Chances are, you’ll begin getting contacted by salespeople offering to help you.  Don’t treat these messages as spam, but rather sift through them and respond to any of those that seem compelling to you. In other words, if those vendors are being opportunistic by messaging you because you’re being sued, you should be opportunistic by treating it as a quick way to research what the market is offering.

Contact your insurance company

One thing you might want to do is contact your insurance company to see what sort of coverage you have, what sort of assistance they can offer, and how they will handle it.  Be careful, however, because the outcome might mean that you become obligated to do things that are not beneficial to you, either in the long term or short term. Insurance company lawyers are not experts in this area, so I recommend shying away from this approach if they don’t let you pick the lawyer yourself. Encourage them to let you use a lawyer who specializes in defending these cases because it will save them (the insurance company) money. I have seen insurance companies essentially roll over during an ADA case by settling for a large amount of money and agreeing to onerous stipulations for the company getting sued.

Behave with diligence

The worst thing you can do is make hasty decisions. Depending on the court and the nature of the case, you’ll have between 14 and 30 days to respond, so you want to sort out your legal representation quickly. But other than that, you don’t need to make any quick or drastic moves in terms of your website. Instead, take some time to plan out how you’re going to address the situation. That said, there are a few things that we’ve found to be universal in terms of things defendants will need to do outside of the legal side of things.

Tackle your accessibility problems

Let’s face it, legally-speaking, there are few avenues available to you when it comes to beating the lawsuit: You can challenge the plaintiff’s standing, you can exploit some technical shortcomings in the filing itself, you can argue that the Web isn’t a Place of Public Accommodation, and you can argue that your website is, in fact, accessible. There’s a strong chance that few of these tactics will work. This is especially true in the latter case.

According to the “WebAIM Million” there’s an average of 50 accessibility errors per page on the Web. To put it bluntly: finding inaccessible websites is like shooting fish in a barrel. A small barrel. Filled to the brim with fish. With a shotgun. Shooting birdshot. At close range. In your case, you were probably one of a dozen fish hit in one shot.

No matter what happens on the legal side of things, you now face a new reality that accessibility is an important compliance domain that requires your attention from here on out. More importantly, fixing your website is an inevitability. This lawsuit does not go away until your website is fixed. So, let’s first start talking about addressing that.

Technical

The best defense against an ADA lawsuit is an accessible website. If you fight the lawsuit and lose, the judge will issue an injunction telling you to fix your site. If you settle the lawsuit, the settlement requirements will include fixing your site. In other words, once a lawsuit is filed there’s one guarantee: you will need to fix your site’s accessibility problems. There is truly no way around this.

There are a few approaches to consider when it comes to fixing your site:

Approach 1: Add an overlay (also known as an accessibility widget)

This approach is not well-received by accessibility experts or lawyers for many reasons. The vendors for such products have often been accused of making false claims. Regardless, relying on the widget alone is a bad approach and will not be considered acceptable by the plaintiff. Most such companies may also offer “custom fixes” and other related services.

Use caution when considering such an approach. It is worth reiterating that the widget on its own will not be deemed acceptable by many plaintiffs. Opting for the “custom fixes” is also a poor strategy in the long-term because as soon as you stop paying for the product you lose those “custom fixes” as well. Finally, it bears mentioning that an academic study into overlays concluded that, at best, the automated fixes from overlays could repair only 44% of issues. What this means is that even if the plaintiff accepts an overlay as an acceptable approach, it is still only a partial approach.

Despite their marketing claims, having an overlay on your site may increase a risk of a lawsuit, not diminish it. In 2024, over 1000 lawsuits cited the use of an overlay as an accessibility barrier. There have been numerous other IT compliance risks associated with their use as well.

Approach 2: Get an audit

Most accessibility consulting firms will recommend getting an audit of your site. This is an excellent approach if your company already has development staff on hand. In this scenario, the consulting firm will typically perform comprehensive testing of core features and workflows on your site to uncover its accessibility problems.

This is typically only a viable approach if you have an internal development team, and even then, your team will probably be ill-prepared for addressing the issues uncovered in the audit. If you rely on an outside vendor for your site, it makes better sense to use a vendor (like us, of course!) that specializes in accessible development.

Before selecting a vendor for an audit, it is important to ask them for a sample deliverable. After all, what you’re really after is assistance in getting your site repaired. The audit is just a step along that journey, so it is important to verify that what they deliver to you is useful for the purpose of informing exactly what needs to be fixed, where, why, and how. If a potential vendor will not give you a sample deliverable, remove them from consideration. Similarly, if a vendor provides a sample deliverable that does not demonstrate that they provide clear, actionable guidance (not boilerplate or links to some resource they have), remove them from consideration, too. I cannot state this strongly enough: an audit deliverable must contribute to the fixing of the site. If it doesn’t contain detailed, clear information of how to fix your site, then it is a bad audit.

Approach 3: Direct Remediation

Not surprisingly, we feel that hiring a development shop to just dive in and fix stuff is the best way to address your technical accessibility issues. Generally, this approach costs about the same as an audit, anyway. It is faster, in terms of total calendar days, than getting an audit and then hiring someone to fix it. There are also financial arguments for hiring an external vendor for the remediation, even if you have your own internal development team.

This approach isn’t without its risks, however. The most notable risk is the difficulty in finding a qualified vendor to do the remediation. Accessible web development remains a niche capability. Any vendor who claims to have accessibility expertise should be able to prove it with a history of expertise in this area.

One thing to keep in mind with both audits and remediation is that they only fix your immediate problem. If they don’t get proper training and tooling in place, then future work will likely break the accessibility repairs, landing you back into a position of elevated risk.

Tooling

Your approach to tooling really depends largely on the nature of your digital properties. For purposes of this discussion, you fit into one of two buckets: your company makes its own digital assets or your company mostly uses a third party platform. For both situations, now is the time to go shopping for some tooling to assist in ongoing monitoring and automated QA. The difference is mostly in what you’re looking for.

If you’re making your own digital assets and have your own development team the more mature and quality-focused your development team is already, the better off you’ll be in this area, because that means you probably already have some unit testing, functional testing, or integration testing in place. If you don’t already have those things, put it in place *before* investing in tooling. The best time to do automated accessibility testing is while the code is still being written. Your team should be looking for tools that integrate with the testing frameworks they’re already using.  On that note, they do not need to buy a third-party tool for this. Accessibility-related assertions can be written just as easily as any other assertions – the challenge is in having the time and expertise to do so.

If your digital assets use a third-party platform, like Shopify, BigCommerce, WordPress, etc. then you’re going to be more focused on testing the live website, rather than the code under development. For that, you’ll want a tool that can crawl and test your site and/ or test specific web pages from your site.

In both cases, you’ll want to spend some time shopping around. For more details on what to look for, check out Choosing an Automated Accessibility Testing Tool: 13 Questions you should ask. One of the most important things you’ll want to do is trial the tool extensively.

Organizational

Addressing your site’s accessibility issues is only part of the equation. The first step, of course, is to accept that you now have new compliance concerns. Just like compliance with safety laws, tax laws, and labor laws, you must comply with laws relating to the civil rights of people with disabilities. There’s no polite way to say this: These requirements have always been there since the day your business formed. Your lawsuit is evidence that you were not in compliance with those laws.

Unless you plan on getting sued again, you will need to address the need to manage your organization’s accessibility approach in the future. How you do this depends a lot on the size and nature of your organization.

Training

The first thing to do, regardless of your company’s size, is to get everyone in the company trained in accessibility. Each person in the organization should get trained on basic accessibility awareness and etiquette and this type of training should be put on all onboarding training for new employees. All executives at the company should be trained on the ethical and legal compliance aspects of accessibility as well as the potential business risks and opportunities. From there, everyone should be trained on the specifics of disability & accessibility as it relates to their role in the company. Technical support staff should be given training in assistive technologies and how people with disabilities use them so they know how to support them. Designers need to be trained on accessible design. Developers need to be trained on accessible development, etc. etc.

Policies, Procedures, and Procurement

Your organization needs formal policies and procedures that address accessibility. At a minimum, you should have a published accessibility statement on your website that communicates your commitment and provides a way for users to report accessibility issues. Beyond that, you should develop internal policies that define your organization’s accessibility standards – typically WCAG 2.2 Level AA.

Procedures matter just as much as policies. You need documented processes for how accessibility will be addressed in your design and development workflows, how issues will be triaged and prioritized when they’re reported, and how new content and features will be reviewed before going live. Without written procedures, accessibility will inevitably fall through the cracks.

Procurement is another critical area that many organizations overlook. If you use third-party products, platforms, or services that contribute to your digital presence, you need to make sure those vendors are also committed to accessibility. This means including accessibility requirements in your RFPs and vendor contracts, requesting Voluntary Product Accessibility Templates (VPATs) or Accessibility Conformance Reports (ACRs) from vendors, and holding vendors accountable for the accessibility of their products. If a third-party widget or plugin on your site is inaccessible, that’s still your problem in the eyes of the law.

Recognize that you’re never done

Although it is reasonable to feel blindsided by an accessibility lawsuit, you now need to recognize that this is an important compliance concern that is never going away. Like various HR laws, privacy laws, financial and tax laws, and safety laws, accessibility is yet another compliance domain for your business. Taking it seriously moving forward is the best way to ensure you avoid a repeat lawsuit. This means not treating accessibility like a one-and-done project, but something that requires ongoing attention. If you need help, we’re only a click away.