The Rise in VPAT Compliance Lawsuits and Settlements: Don’t Be Part of the Statistics!
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2023 is a brand new year. Businesses are starting, while those that have been around for a while are focusing on maximizing the opportunities that come with the new year so as to make more profits. Whichever side of the divide your business is on in this matter, how have you prioritized the accessibility of your information and communication technology (ICT) products and services?
At ADACP, we get excited when ICT businesses are on a growth trajectory because ICT creates direct jobs, is a significant contributor to GDP growth, inspires the emergence of new services and industries, fosters workforce transformation, and encourages business innovation.
For instance, did you know that in OECD countries alone, more than 95% of businesses have an online presence? That is because ICT, through the Internet, is providing businesses with new and innovative ways of reaching out to their customers. ICT is therefore providing a somewhat level playing field for businesses to compete for market share.
Indeed, as you may have noted, social media, which is a subset of innovation in ICT, has established itself as a powerful marketing tool for all kinds of businesses. That has made businesses whose products or services are not ICT-based espouse ICT as a significant marketing tool.
Businesses that embrace ICT tools generally tend to have streamlined business processes as well as improved efficiency. With the unprecedented explosion of connected devices globally, your business will be left out of the opportunities provided by ICT to serve customers if you don’t embrace ICT tools.
To succeed with ICT tools, you just need to focus your attention on the United States (US)! Did you ever know that the U.S. leads the global landscape in ICT innovation?
According to the World Economic Forum’s 2018 Global Competitive Index, the US’s ICT competitive edge is underpinned by a culture of business dynamism, strong institutional pillars, financing mechanisms, and a vibrant innovation ecosystem.
One of the key drivers of success in ICT innovation in the U.S. is the country’s approach to the accessibility of ICT. In 1990, the country enacted the Americans with Disabilities Act (ADA), which is a civil rights law that prohibits discrimination against individuals with disabilities in all aspects of public life, including jobs, schools, transportation, and all other public and private places that are open to the general public.
The ADA was designed to avoid government bureaucracy by allowing aggrieved individuals to enforce the law by filing private lawsuits with the courts rather than having the government enforce the law. To enforce the law, even for minor technical violations, an individual can file a lawsuit in a state or federal court.
While the ADA applies to businesses that are open to the public as well as state and local governments, the U.S. closed the loose ends in its bid to deepen ICT accessibility through Congress’ amendment of Section 508 of the Rehabilitation Act. The revised Section 508 requires that the federal government procures, creates, uses, and maintains ICT that is accessible to people with disabilities, regardless of whether or not they work for the federal government.
Therefore, the ADA and Section 508 share the common goal of eliminating discrimination against people with disabilities. They address different types of organizations, however, because the ADA applies to businesses that are open to the public, whereas Section 508 applies to federal agencies.
Whereas any individual is at liberty to help in the implementation of the ADA by filing lawsuits against violators, the US Access Board has established Section 508 standards that implement Section 508 and provide the requirements for accessibility.
To help deepen accessibility, the Information Technology Industry Council (ITI) developed the Voluntary Product Accessibility Template (VPAT) in collaboration with the U.S. General Services Administration (GSA) to provide a standard reporting template and make it easier for procurement officials to conduct preliminary assessments of how available ICT products and services conform to the established accessibility standards.
Without Section 508 VPAT compliance, the U.S. federal government, its departments and agencies, and the organizations that are funded by the federal government cannot procure an ICT product or service.
Thanks to the efficiency brought about by VPAT compliance, individuals and organizations that seek to enforce ADA compliance are increasingly relying on VPAT certification to identify accessibility violations in ICT products or services. One of the areas that have attracted significant interest is the use of websites and web-based tools by businesses to pass information to their customers.
While the Eleventh Circuit decision vacated the court decision that websites are “places of public accommodation” as provided for under the ADA, unless they create an intangible barrier that excludes people with disabilities from accessing goods and services in a physical store, VPAT accessibility for the physical stores associated with websites is a front that has helped to increase ADA violation lawsuits and settlements.
While many businesses thought that the Eleventh Circuit decision would deal a blow to the ADA VPAT compliance lawsuits, the ADA enforcers have proven this to be a fallacy.
For instance, in a new record in 2022, ADA plaintiffs filed 3,255 ADA VPAT compliance lawsuits, which was a 12 percent increase from those filed in the year 2021. Pundits argue that you just need to look at the quality of the manufacturer’s or vendor’s user documentation to know the quality of the product or service the documentation relates to.
Arguably, if a website that provides information about a physical store or product has access barriers, it is likely that the physical store or product has accessibility challenges. This is the logic used by many of the plaintiffs who file successful ADA violation lawsuits.
That is why at ADACP, we advise manufacturers and vendors of all products to be forthright when filling out the WCAG VPAT document to generate the VPAT reports for their websites and web-based platforms. That is because the ADA violation plaintiffs use these WCAG VPAT reports to identify the vulnerabilities of a business in terms of ADA violations.
With more than 70 success criteria to have your website or web-based application be Section 508 VPAT compliant, it is not easy to test the digital properties for Level AA WCAG standards required for the ADA and Section 508 compliance on your own.
Call Our VPAT Compliance Consultants Today at (626) 486-2201 to schedule an appointment so you can discuss your VPAT compliance needs. You can also use our WCAG VPAT Compliance Checker to get an idea of the conformity of your website or web-based application to the Section 508 accessibility standards.