Accessibility Lawsuits, Trolls, and Scare Tactics

There has been a lot of discussions in Web Accessibility circles around “ADA Trolls” this year. The massive uptick in web-accessibility related lawsuits that began around October 2015 is certainly a new trend in this space. While lawsuits around web accessibility are certainly not new, the frequency and volume we’ve seen in 2016 definitely is.

A few days ago, 60-Minutes aired a segment on what they refer to as “Drive-by Lawsuits“. In reaction, Lainey Feingold framed the segment on 60-Minutes as a “Hit Piece” – and rightly so, in my opinion, because it gave the impression that people with disabilities are being used as dupes for unscrupulous lawyers.

Not even a few days old, the 60-minutes segment is already being used to argue against making websites accessible

There are a lot of scum bag lawyers taking advantage of these laws and are actively going after small businesses that are “not in compliance”.

David Bekhour’s response to the 60-Minute segment Anderson Cooper: What Were You Thinking? is a must-read, but I’d like to also throw a few brief thoughts into the mix.

The Objective Facts about Drive-by Lawsuits and Trolling

In the United States, a few dozen ADA-related lawsuits are filed in US Federal Courts every day. (Search PACER for Case Type: 446 American with Disabilities and 42:12101 Americans w/ Disabilities Act (ADA)) for a list. If you were to download a full list of all of those lawsuits, you’d begin to see a handful of names appear repeatedly throughout the list. Some of those repeat names will be Plaintiffs’ attorneys. Some of those repeat names will be the plaintiffs themselves.

Making a judgment about which of the law firms listed are engaging in “drive-by” lawsuits simply by their frequencey of appearance would be making a hasty assumption. Law firms or even individual lawyers within law firms often specialize in specific practice areas. For instance, when my wife and I needed a lawyer to deal with our daughter’s IEP stuff, we went to a lawyer who specialized in that area. It would be silly for me to hire that same lawyer for doing contract negotiation stuff for Tenon, because that’s not her area of expertise. Similarly, there are lawyers who specialize in Disability Rights. There’s even a Disability Rights Bar Association:

The Disability Rights Bar Association (DRBA) was started by a group of disability counsel, law professors, legal nonprofits and advocacy groups who share a commitment to effective legal representation of individuals with disabilities.

The lawyers listed in PACER as having filed the suits are likely to simply be doing what lawyers do for any other type of lawsuit. Lawyers, at least in my experience, are generally not quick to file suit. Some are, of course, but usually there’s a lot of other stuff that has happened before the suit was filed. Strategically-speaking trying to resolve a conflict before filing the suit is a much smarter approach to victory. Simply put: there’s no reason to believe that a plaintiff’s lawyer is engaged in “drive-by lawsuits” simply because a firm that specializes in disability rights has filed a lawsuit.

When it comes to the named plaintiffs themselves, that might be trolling. Looking at the list of lawsuits, you will see certain plaintiff’s names very frequently. Some law firms file suit on behalf of the same plaintiffs over and over. The 60-Minutes piece discusses some of this, and I have to admit that this definitely gives the impression of unscrupulousness.

The missing pieces to truly understanding the situation

In other words, even if we assume that each Defendant in the ADA suits was unique, less than 0.5% of retail businesses or restaurants were sued in 2016. They were sued by 0.003% of the population of people with disabilities. No matter how you use the numbers above, there’s no support for any claim of an epidemic of ADA lawsuits sweeping the country. Yes, there are some people who are clearly trolls. I think it is safe to say that the folks who’ve filed > 50 lawsuits this year are probably trolling. They account for 1.8% of the plaintiffs. On that basis alone, 60-Minutes should be ashamed for being sensationalist in its reporting.

I realize the above doesn’t address the epidemic of threats and shakedown letters around Web Accessibility over the past year. No data exists to provide exact numbers on this activity, but I assume less than 1000 of those demand letters have been sent. Even if we doubled that to 2000, that’s still around 0.01% of the websites in the United States.

Accessibility Matters

Since my site is mostly about web accessibility: If you don’t have to use the Web with a screen reader or without a mouse, you really don’t know what it is like for people with certain disabilities to try use most websites. If you don’t believe what I say about the difficulties, unplug your mouse for the day. Still not convinced? At Tenon, we’ve been inspired to do some investigating into error patterns and will be sharing some of our findings at CSUN 2017. Nater Kane and I will be presenting on Data-Mining Accessibility: Research into technologies to determine risk and Job van Achterberg will discuss Automatica11y: trends, patterns, predictions in audit tooling and data based on data from the world’s top websites. Below are just a taste of the findings that will be shared at CSUN:

  1. There are nearly 70 automatically detectable issues on each page of the web – before accounting for contrast issues
  2. Color contrast issues are, by far, the most pervasive issues
  3. 28% of all images on the web have no alt attribute at all.
  4. Another 15% of alt attribute values are completely worthless things like “graphic”
  5. role attributes, when used, are equally likely to be used wrong – for arbitrary string values that have no basis at all in the ARIA specification
  6. 81% of buttons on the web have no useful text for their accessible name

Beyond raw numbers, it is important to remember that this is a civil rights issue and accessibility both in the physical world and on the Web is, in a word: abysmal. There is no epidemic of people with disabilities going from website to website suing people. The epidemic is that we’re 19 years after the formation of the Web Accessibility Initiative and yet developers at the largest websites in the world can’t figure out the alt attribute or how to put meaningful text in buttons. Because if you do get sued, nobody will have pity on you for doing subpar work.

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]