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mitigate against the exposure of such claims, in part because infraction is not cured or remediated during that window.
most ski areas do not have insurance coverage to pay the The proposed legislation would also direct the Department
legal defense costs, settlements, and attorneys’ fees that of Justice to create an education and model training program
are the main driver of these ADA lawsuits. And under the to help guide businesses to remediate their facilities and oper-
ADA, bear in mind that if a plaintiff’s claims against a busi- ations, as well as an alternative dispute resolution program
ness force it to make any changes operationally for more dis- to resolve such controversies outside of court. In most federal
abled access—including remediating a website to make it courts around the country, ADA lawsuits are often the leading
more accessible to the blind and deaf—the plaintiff arguably
can recover their attorneys’ fees from that business. It is this
threat of attorneys’ fees that is the bludgeon forcing many How to Avoid Getting Hit
businesses to settle their ADA complaints. Put otherwise, in the First Place
these ADA website accessibility lawsuits are a legal shake- What can your resort do now to make your website more
down for easy attorneys’ fees. ADA compliant?
Still, these ADA website accessibility lawsuits and Start by establishing someone within your resort to
demand letters need to be taken very seriously. After Donald own your web accessibility program, likely your marketing
Trump’s victory in the November elections, ski areas and director. You also need to establish an internal policy, and
other businesses should act very quickly, because these law- publish a “web accessibility statement” to your website
suits are going to get far worse in the near term before the alongside your privacy policy in the footer of every page.
ADA statute can be reformed by a Republican Congress and This serves as a flag to legal trolls that says, “We’re on this;
a Trump White House. look elsewhere for suckers.” In fact, for any adaptive or dis-
In November, the Wall Street Journal ran a lengthy arti- ability issue, NSAA recommends having an ADA point per-
cle analyzing the recent trend of plaintiffs’ law firms suing son at your resort, with a tab on your website informing
businesses over ADA claims for website accessibility, a trend guests to reach out to the resort within 72 hours advanced
that started in late 2015 when a plaintiffs’ firm in Pittsburgh, notice to resolve any accessibility issues.
Carlson Lynch, started sending out demand letters and filing The next step is to audit the website and catalog the
lawsuits against large national retailers, including Patagonia, violations throughout the website. While there are auto-
Toys “R” Us, Brooks Brothers, and Foot Locker. According mated tools that can scan your site, they only capture 20 to
to the Wall Street Journal, since 2015 there have been 240 25 percent of the issues. The best practice is to hire a web
ADA website lawsuits filed against retailers, restaurants, hos- accessibility consultant who can augment automated test-
pitality businesses, and other companies. Those are actual ing tools (and who have much better ones) with manual
lawsuits filed in federal court—and that’s just the tip of the code reviews as well as assistive technology testing. Here
iceberg. As the Wall Street Journal reported, many of those the tester will use actual assistive tools—such as screen
claims settled for upwards of $75,000 or more (albeit these readers used by people with vision or certain cognitive
are national businesses). In addition, there are hundreds impairments—and test key pages of the site.
more demand letters from plaintiffs’ firms sent to businesses The audit reporting is key. You don’t just want a list
threatening lawsuits, which is the first volley in an effort for of errors. What you want is a list of each error, the location
a plaintiffs’ law firm to obtain its attorneys’ fees under the and, most important, how to fix it. The “how to fix it” part
ADA. In fact, at least 17 mid-size or larger ski areas have doesn’t come from an automated program; it comes from
received such demand letters to date. a trained consultant who can provide the direction your
And ADA legal experts expect those numbers to climb developers will need to resolve the issue.
well into 2017. Here’s why. This raises a key point—in most cases, you don’t bring
With Trump’s surprise election to the presidency, and the in new developers to do the actual code remediation.
Senate remaining controlled by Republicans, there now may You want to use your existing web development partners
be a much stronger appetite to consider legislation to reform because every site is coded uniquely and they will be able
the ADA to prevent such abusive lawsuits. Currently, a bill to do this work most efficiently—and they’ll learn from the
called the ADA Education and Reform Act is moving through process to ensure that future work complies.
Congress, which would provide for a sensible cure period Another list of resources and related articles about web-
(90 days) before a plaintiff could commence an ADA law- site accessibility can be found at www.accessibility.works. —DG
suit against a business and recover attorneys’ fees if the alleged

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