How to Avoid It
I grew our company for three years from my home near Seattle before moving to an office and warehouse. Our skin balms are used around the world now to help protect your skin from rubbing that causes irritation, chafing, foot blisters and raw skin. Our brand is Body Glide® and suddenly one day recently, we became a target for a lawsuit in federal court.
Once a journalist, always a journalist, I quickly discovered we were not alone.
We were a sitting duck and you may be, too, if your website isn’t compliant with the ADA, the Americans with Disabilities Act. It makes no difference if your business is big or small or that it’s home based.
The ADA was signed almost 30 years ago before the Internet was a thing. Law firm Seyfarth Shaw LLP reports there are 3 times more suits this year than last.
The lawsuits have been growing in number across the country, many being lodged from Florida and New York. Gibbons Law, a New York firm, says more than 1,500 cases are clogging the dockets of the Southern and Eastern Districts of New York, and “every business with a consumer-facing website is at risk”.
The true number impacted businesses is elusive because a number of the targets are settling out of court. Many are paying legal fees and costs to the plaintiffs and their lawyers, and some have faced significant legal defense costs. It can all be avoided, but first, here’s some background.
The quasi-legal shakedowns are made possible because of inaction by Congress to close a gap in law and to tell businesses they need to comply with the ADA and how. The gap is like an ATM machine for lawyers. It needs to be responsibly addressed, and Congress is missing in action.
Our notice came in email, not even a certified letter and I nearly deleted it. Attached was a draft civil complaint to be filed two states away in federal court in the Central District of California. What?
Before considering a call to a lawyer, I started digging.
The lawyers at the door were on the east coast, allied with more lawyers on the west coast, with a plaintiff in Los Angeles, and they alleged our website shut out people who are hearing, visually and physically impaired. We had thirty days to respond and after that, even in settlement, they wanted fees, costs and damages.
There are no Body Glide storefronts and though our products sold on our website, overwhelmingly the sales are through retail partners, many of twenty plus years. We were hardly alone.
In 2012, the US Census Bureau reported 1 in 5 Americans have a disability and the number may grow as more of us live longer.
The challenge is, until now, you may not have known the ADA applies to your website even if you don’t have a storefront. The ADA definition of what businesses are covered is broad and includes professional offices and physical places wherever the public receives most any goods or services.
You have a home business, a website, no storefront, so does the ADA apply? Read on.
The draft lawsuit against us wasn’t limited to the federal ADA law. It also pulled in California Civil Code, Part 2, Personal Rights, Section 51 (b) generally known as the Unruh Civil Rights Act that says: “All persons… are free and equal, and no matter what their sex, race…disability, medical condition…are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.”
On one hand, there’s federal law, and if you have a physical location and a website, both must be ADA compliant.
On the other hand, there’s state law and in California, the Unruh Act requires equal access for persons hearing, visually and physically impaired even if you are only selling goods and services on a website that is seen by people in California. What public website is not seen in California? Yours?
We acted without counsel, and you may or may not need one. Read on because you can avoid trouble.
There are companies that quickly modify websites to be compatible with ADA, and we signed-up. The system scans and updates the website for changes in the previous 24 hours. We were given one line of code and directions to install it. Within minutes, our site was visibly compliant with Web Content Accessibility Guidelines: WCAG 2.1 AA Level, ADA Section 508 (also Canada AODA, and EU regulations in EN 301549). Check your software, question your site developer.
At bodyglide.com there is a disabled symbol at the lower right. It opens options for font, scaling, color, contrast — and all of the content is compliant with software used for access to the site by someone who is disabled, and our mobile site is similarly accessible. The entire annual cost was less than $500, and we paid nothing more.
In a matter just a few days our website was ADA compliant and the lawyers dropped the threatened lawsuit. Depending upon your business, your website and how quickly you act, you may be lucky, too.
Be warned! It’s best to act now. Here are two takeaways:
You can comply with ADA using an online vendor, provide access to everyone and possibly benefit from sales that offset the annual compliance cost.
Or, be a sitting duck and take your chances because there’s nothing to stop a lawyer from targeting you… nothing!
