What a new accessibility class action lawsuit means for agencies

Or What happens when developers are liable for accessibility, Part 3

Also in this series

1. What Happens When Developers are Liable for Accessibility (Part 1)
2. What Happens When Developers are Liable for Accessibility, Part 2
3. What a new accessibility class action lawsuit means for agencies

Overlay’s class action moment

Last month, a small dermatology practice in New York filed a class action lawsuit against AccessiBe, one of the larger overlay vendors. The practice, Tribeca Skin Care, allegedly installed Accessibe’s automated accessibility widget (or overlay) in reliance of promises that it would bring the site into compliance with the ADA. Even so, Tribeca Skin Care was itself sued earlier this year and claims that AccessiBe did not provide the help it had promised in the event of a lawsuit. 

This class action seeks to represent all customers who subscribed to AccessiBe’s services. Given some of the controversy around overlay (or automated accessibility widget) providers, this could be a landmark case. If successful, it could limit how overlay companies market their solutions.

But what does this have to do with agencies?

What do agencies owe clients?

One thing that keeps coming up in our series is that clients trust their agencies or developers to be good stewards of their sites. That includes building the sites to an accessible standard and helping the client stay on the right side of legal requirements.

Much of the time, accessibility is not on the radar as a requirement for either the site owner or developer when the site is first built. That isn’t great. And if California’s AB1757 digital accessibility bill becomes law, liability for the inaccessible build may also be shared with the agency or developer.

It’s even worse when accessibility is on the radar for the client and the agency simply doesn’t follow through. Earlier this month, we dug into the case of Bashin v. Conduent where a government contractor won a bid for a website for California state parks where accessibility was specified as one of the contract requirements. In that case, the agency was found liable for $2 million in damages and penalties for making a false claim in delivering the inaccessible site.

We certainly didn’t expect to add another installment to this series so quickly but this new class action lawsuit raises a new area where agencies and developers should tread carefully in making recommendations related to accessibility.

Overlays and agencies

This lawsuit directly targets AccessiBe. But agencies play an important role in the overlay economy.

In part, this is because overlay vendors target agencies as part of their customer acquisition strategy. Agency partners are paid commissions and allowed to sell overlay subscriptions at a markup.

But for most agencies, the incentives are not strictly financial. After all, it’s hard to make any significant commissions off a product that costs less than $500 per year without doing very significant volume.

For agencies that may not have the knowledge to implement accessibility on their own, overlays offer the opportunity for a quick fix. And furthermore, when clients don’t have budget to allocate for accessibility improvements, agencies want to be good partners and help by finding cost effective solutions. For most agencies, recommending an overlay widget is no different than helping clients find the right cookie consent widget or SEO tool.

An opportunity to reconsider

The class action lawsuit should give agency partners pause. Even though websites with overlays comprise about 25% of all ADA web lawsuits filed annually, there was enough marketing out there to create some uncertainty. Even if overlays are not very effective at fixing accessibility issues, maybe they are at least a net positive in deterring and negotiating with plaintiffs. The allegations in this lawsuit tell a different story. Most agencies don’t want that for their clients.

But more importantly, the lawsuit alleges that AccessiBe violated several New York state laws related to contracts, covenants of good faith and fair dealing and implied warranty. In other words, the issue is not only AccessiBe’s performance as an accessibility service but that it allegedly breached its promises and representations to clients.

It’s beyond our scope to understand whether those legal obligations extend to agencies recommending an overlay. (For that, you should contact your attorneys.) But we do think that breach of trust is not only a legal concept. It’s certainly in every agency’s interest to carefully consider whether it’s creating legal liability for itself in recommending an overlay.

But either way, no agency should want to recommend an ineffective service that may make the problem worse.

What can you do?

If you’ve already recommended AccessiBe, it may be worth bringing this new information to your clients’ attention too. But it’s not too late to make changes to reduce everyone’s legal risk and make real and measurable accessibility improvements immediately. Today can be day 1!

• Learn more about the lawsuit: Disability rights attorney Lainey Feingold has a great summary of the case and its claims.
• Be precise and honest about your recommendations and capabilities
• Shift left by incorporating accessibility earlier in the process as you plan, design and build a website
• Use automation wisely: Automated repair is not reliable but there’s a lot of testing and scanning that can run on automated processes. Set it but don’t forget it. Review results regularly to ensure you avoid accessibility decay.
• It’s not all or nothing: While full accessibility should be your target, every little bit helps. We’ve put together a free 7-day content accessibility course that can help you and your client cover a lot of accessibility ground in a short period.
• Find help where you need it: You have to start somewhere and bringing in the right accessibility partner can help you deliver on accessibility with confidence. Move beyond automation and start with a (free) manual accessibility assessment.