Reduction of Legal Risk as Web Accessibility Business Case

This blog post is part of a series of posts discussing the Business Case for Web Accessibility. To get a full view of the Business Case for Web Accessibility, I encourage you to read all posts in this series, links to which can be found at the bottom of this post.

In this post, I’d like to discuss risk. Specifically, I’d like to focus on list of litigation, primarily because although I have previously outlined a number of factors that fall under the umbrella of “risk”, it is legal risk that most people tend to gravitate toward when discussing accessibility. This is especially true in the United States, which is where the overwhelming majority of web accessibility-related litigation has been seen. In short, the argument goes, if your site is inaccessible you can get sued and lose a bunch of money.

Risk is the potential that a chosen action or activity (including the choice of inaction) will lead to a loss (an undesirable outcome).
Wikipedia

  • Does it increase income? No. This argument is about risk mitigation
  • Does save money? Yes. It prevents loss due to legal fees, settlement costs, and harm to brand
  • Does it mitigate risk? Yes
  • How strong is the evidence? Extremely strong in the United States, almost nonexistent elsewhere.

Whenever you do something that may harm you, you are creating a risk. When you smoke cigarettes, that activity raises your risk of getting cancer, emphysema, and heart disease. Whenever you create an inaccessible ICT product or service, you’re raising your risk of a lawsuit or penalties due to noncompliance with regulation. Why? Because, well, there are laws and regulations in the United States, the EU, and several other countries that are aimed at eliminating discrimination against persons with disabilities. Many of those laws specifically mention their applicability to ICT. Therefore, if your ICT product or service is not accessible, you are putting yourself and / or your customers at risk.

But Karl, didn’t you say FUD is bad?

I did. Too many times I’ve witnessed an accessibility advocate exclaiming “If you don’t make your website accessible, you’ll get sued!. The truth is: You can get sued and you can get sued for a ton of money. But your level of risk for a lawsuit depends significantly upon your probability.

What is your probability of an accessibility lawsuit? In its simplest form: Probability = (number of negative events) / (population). Your probability of anything happening is based on the size of your population and the number of negative events within that population. In other words, if 10 people out of every 100 get a speeding ticket every 5 years, then your probability of a speeding ticket every 5 years is 10% (10/100 = .10).

In terms of accessibility lawsuits, it is important to understand how to determine your population. Your population isn’t “all the other websites on the Web”, but rather it is your peer companies. How you define your peer companies involves a number of factors such as industry, site features, audience demographics, reach, and engagement in risky behavior. Note that I use the word “peer” rather than “competition”. Your competition could be a brick & mortar entity, or it could be a company that is much smaller. While they may compete in the marketplace, they are not a “peer”. Again, to use a simple analogy: Lung Cancer Probability = number of cancer cases/ number of people engaging in cancer-causing behaviors. Although everyone has some level of probability for lung cancer, people who are engaging in cancer-causing behaviors are in a very different peer group from those who don’t. Their engagement in that behavior increases their probability of the negative event.

How do we determine a business case from this?

From the probability, we can determine how much we are risking. Our risk amount is our probability multiplied by our expected loss: Risk Amount = (probability of a negative event) * (expected loss in case of negative event). For example, if we have a 10% probability, our risk amount is 10% of the total expected loss  (.10*totalExpectedLoss). To use an extreme case, we’ll use the Target lawsuit. Target settled with the NFB for $6,000,000 plus $4,000,000 in attorneys fees, etc. Based on their population (very large e-commerce sites) they had an 8% probability: .08 * $10,000,000 = $800,000. If you’re a company that is a peer of Target, you are risking $800,000. Some people may argue that you’re actually risking $10,000,000 because that’s what Target settled for, but that doesn’t take into consideration your probability of the lawsuit. How does this create a business case? Well, implicitly this means that your Return on Investment (ROI) for accessibility (assuming 8% probability) is $800,000 minus the money you spend on accessibility. If you hire a new accessibility Subject Matter Expert (SME) or engage a consultant and pay them $100,000 and spend another $100,000 on an accessibility testing tool, and then spend $50,000 training your development and QA staff on accessibility, then your ROI for this is $550,000 (that’s 800000-(100000+100000+50000)). Again, to beat on the Probability Horse for a while, your ROI isn’t $10,000,000 unless you have 100% probability.

How do Risk Factors factor in?

The tricky part in all of what I’ve said above is determining who our peers are. There are two classes of risk factors for an accessibility lawsuit. I call them “Positive Risk Factors” and “Negative Risk Factors”. When reading this section, I’ll be referencing data I’ve collected over at my List of Web Accessibility-Related Litigation and Settlements

Positive Risk Factors

Positive risk factors are those things that tend to indicate a higher probability for a lawsuit.

  • Industry– So far, Web accessibility lawsuits in the United States tend to happen most often to companies that operate in the following industries:
    • Finance & Insurance
    • Healthcare
    • Travel
    • E-Commerce
    • Government
    • Education

    This doesn’t mean that if you’re outside of these industries that your risk is low. What it means is that if you are in one of these industries, your probability is much higher. This is sort of a no-brainer because these industries provide products and services that people need in their day-to-day lives.

  • Amount of Web Traffic – Accessibility lawsuits tend to happen to companies with sites that get a lot of traffic. Again, this is pretty obvious. The more people who visit your site the more likely it will be that people will discover its flaws.
  • Breadth of Audience – In looking at the demographics of the companies that have been sued, none of them really had any special niche demographics. They were mostly 50-50 in terms of gender and the economic and racial makeup of their audiences were mostly in line with the general population as well.
  • Amount of Revenue– The private sector organizations that have been sued so far have all been pretty big:
    • 16/45 are Fortune 500-1000
    • 11/45 are Fortune 101-500
    • 8/45 are Fortune 100
  • Current Level of Compliance – As the saying goes, When you play with fire, you get burned. This is the accessibility-lawsuit equivalent of smoking and lung cancer. People who have accessible sites don’t get sued for having an inaccessible website. All of the companies that were sued had (at the time) inaccessible websites. Plain and simple.

Does this mean if you’re not huge, you won’t get sued? NO! The one thing to understand is how size plays into probability. Penn State, for example, has nowhere near the traffic of Target.com, but they got sued also. They’re big in comparison to other educational institutions but not when compared to a huge e-commerce company like Target so the thing to keep in mind is that being big in comparison to others in your industry is going to create higher probability. Keep in mind also that being small (even very small) is no guarantee you won’t be sued. One of the very first web accessibility lawsuits was Hooks v. OKBridge which was an extremely tiny online Bridge player’s website that doesn’t even register on Alexa.

Negative Risk Factors

Negative risk factors are those things which tend to diminish probability of being sued. Keep in mind, none of these items deliver any immunity from being sued but are rather traits that are not often seen among companies which are sued.

  • Existence of accessibility in policy & procedure
  • Inclusion of accessibility tasks in the Software Development Lifecycle
  • User Acceptance Testing for deliverables that includes testing for accessibility
  • Internal training program for accessibility
  • Existence of enterprise class tools for testing for accessibility
  • Existence of internal standards for accessible development

Companies that are on the path toward making their sites more accessible tend to have a lower probability than those who do not. I do not have any special inside knowledge of any of the many accessibility lawsuits, but from what I understand, those that get sued tend to be those that are less prepared – as an organization – to handle accessibility. They tend to lack internal policy & procedure, they lack training, and they lack any formalized process. They cannot and do not react well when accessibility complaints arise. This inability to react appropriately appears to increase the chances that a complaint will turn into a lawsuit.

The obvious reaction to what I’ve said above is “Duh, if they’d done those things then their site would be accessible so of course they wouldn’t get sued!”. That’s exactly my point!

What is your risk?

This is a topic I have significant interest in and am working on defining much more clearly. What remains unclear for me is which of the positive factors weigh the heaviest and how heavily they’re weighed. Eventually I’d like to get to the point of having an actual formula to use that takes these factors into consideration and includes their weights. Until then, here’s what I’d recommend:

  1. To really get a grasp on your probability, intelligently select your peer population based on industry, size, and demographics.
  2. If your industry is one of the 6 industries discussed above, your probability is much higher than most
  3. If you are among the largest (both in terms of money and web traffic) of your peers, your probability is much higher
  4. If your website has significant accessibility problems, your probability is much higher.
  5. In terms of risk amount, I’d use $10,000,000 if you’re in the Fortune 100. I’d use $2,000,000 if you’re Fortune 101-1000, and I’d use $1,000,000 otherwise (disclaimer: I’m just making these up from hunch because the only number I really know is the $10,000,000 from Target)

Conclusion

I am not a lawyer. None of this should be taken as legal advice. Instead, understand that the above is my best information on the topic of accessibility from the perspective of a layperson who has been observing and inquiring about this subject for a while. While I know a lot about accessibility, I know very little about the law. If you have legal questions, consult a lawyer.

Looking at the list of web accessibility-related lawsuits, the oft-heard claims that an inaccessible site can get you sued appear to hold very little water except in a limited number of circumstances.  Namely these circumstances are based on:

  • Location (United States)
  • Industry
  • Size

That being said, nothing (especially within the US) gives you immunity from a lawsuit. Just as the best way to avoid lung cancer is to not smoke, the best way to avoid an accessibility lawsuit is to not have an inaccessible site.

Photo Credit

If you are interested in learning about the next generation in Web Accessibility Testing, give Tenon.io a try.
If you or your organization need help with accessibility consulting, strategy, or accessible web development, email me directly at karl@karlgroves.com or call me at +1 443-875-7343. Download Resume [MS Word]

2 Trackbacks

  • […] These are metrics intrinsically tied to profitability. Sure, there’s the tried-and-true legal risk argument people like to make, but you must also consider the real impact accessibility-related quality […]

  • […] Government entities are required by law to make their websites accessible. This is mandated by ADA Title II for State & Local governments and by Rehabilitation Act Section 508 for Federal Agencies in the Executive Branch. The Department of Justice’s Civil Rights Division periodically reviews ADA compliance at State & Local Government as part of Project Civic Access and, where necessary, pursues litigation to ensure compliance. At the Federal level, most of the litigation that has taken place has come from varied sources, such as citizens or agency employees. The plaintiffs in these cases are supported by disability rights organizations such as NFB. […]

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