ADA lawsuit costs are WAY more than just the settlement

When performing accessibility risk assessment, there are many costs you must include in your calculations in addition to plaintiff payouts

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Gavel next to six stack of coins of increasing heights with a hand placing a coin on the top of the highest stack

Karl Groves wrote an amazing article this week on the ROI on Accessibility. This is a topic near and dear to my heart and one I am considering for my PhD thesis since Accessibility ROI is largely only discussed in warm and fuzzy terms about how it will help organizations “achieve their values” and “accelerate their mission” not in hard and fast terms such as the benefits of doing it and the cost of NOT doing it.

I thought I would offer a more expanded look based on my 15 years of experience on the costs associated with defending a digital accessibility lawsuit or action from the Department of Justice.

Reputation / Brand Harm

The cost of harm to an organization’s reputation and brand is perhaps the largest unquantifiable cost associated with getting sued for discrimination. What is indisputably true is this — the more you *rely* on your reputation, the more this cost will hurt should a digital accessibility lawsuit occur. ? 91 % of people with disabilities walk away from inaccessible experiences without complaining. Your organization may never know they were even there, waiting to be converted to customers, and inaccessibility drove them to your accessible competitor.

Defendant’s legal costs

  • Internal legal costs — the costs of time and paralegals on staff that are dealing with this lawsuit. Fully burdened hourly cost for a mid-level Silicon Valley in-house attorney is $175 an hour. And having to use your in-house attorney for this matter may drive you to send some of their issues to outside attorneys which will be substantially more expensive.
  • Outside counsel costs- most larger companies hire experienced litigators to defend them. Price ranges on these folks is typically $600 per hour and up.

This does not take into account the incredibly complex area of indemnification. Did your organization have contracts in place that stated that vendors would comply with the law or provide legally compliant services? And were they responsible for some or all of the inaccessible areas? You may have a claim to recoup some of your costs, but you will have to invest even more legal time and money pursuing an indemnification claim against them.

Plaintiff’s Legal Costs

Expert Costs

Mediation / Arbitration Costs

Accessibility Opportunity Costs

Engineering Opportunity Costs

  • Spend money bringing in accessibility experts to solve the problems, or;
  • Lose engineering opportunities by moving current engineering FTEs over to accessibility remediation

While the first bullet point (spending the money to bring in outside coders) seems like the easiest way of solving this issue — it is only a temporary fix unless you plan on doing this for every release. That approach is the textbook definition of “reactive accessibility”. Proactive accessibility, that is training your internal staff to think about accessibility from the idea stage through implementation, is always better faster and cheaper than reactive accessibility.

Post-Settlement Mandated Costs

  • obtain independent audits certifying that their release is accessible before it is generally made available to the public
  • acquire and run particular accessibility tools
  • hire people into specific roles
  • conduct very specific training (sometimes using plaintiff’s hand-picked consultants)

Lawsuits are public and messy. When you are seeking vendor quotes for tools or consulting related to a lawsuit, the vendor is put in the driver’s seat for negotiating cost. The vendor KNOWS your orgaization is being required to do this even if the exact terms of the settlement are confidential. They aren’t motivated to provide discounts.

Tag along lawsuits

Physical access complaints can lead to orders to remediate websites

  1. Disabled customer complains about physical access (in one case it was about parking spaces, in the other, how chairs were organized in a waiting room blocked wheelchair access).
  2. DOJ opens an investigation
  3. The investigation, once opened, can investigate *ANYTHING*
  4. DOJ finds in its investigation that the defendant’s website is not accessible
  5. DOJ orders defendant to fix many things, which includes inaccessible website.

Conclusion

Written by

Accessibility Architect @ VMware. W3C Silver, ITI & IAAP GLC committees. Degrees in CS, law, business. Wheelchair user w/ a deaf daughter.

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