Defending Against Accessibility Claims: Good Faith Strategies

The Good Faith Defense

While proactive accessibility remediation remains the optimal strategy, understanding litigation defense mechanics helps organizations appreciate why accessibility investment is critical. Courts increasingly favor defendants demonstrating good faith accessibility commitment, creating material incentives to establish documented accessibility programs before litigation occurs.

How Courts Evaluate Good Faith

Courts generally do not recognize an absolute "good faith" defense that eliminates ADA liability. However, defendants demonstrating genuine commitment to accessibility receive substantially reduced damages and more favorable settlement opportunities. Conversely, defendants showing indifference to accessibility face enhanced damages.

Good faith evaluation considers: whether organizations had accessibility policies, whether development teams received accessibility training, whether accessibility testing was conducted, whether accessibility issues reported were remediated, and whether organizations demonstrated knowledge of accessibility requirements.

Documentation: The Critical Element

Establishing good faith requires documentation. Organizations cannot claim good faith commitment without evidence. Critical documentation includes accessibility policies and standards, training records for development teams, accessibility audit reports, remediation project records, accessibility committee meeting minutes, vendor selection documentation showing accessibility evaluation, records of accessibility issues reported and responses, and accessibility expert engagement documentation.

Timing Matters

Documentation created before litigation carries far more weight than documentation created after litigation filing. Courts are skeptical of organizations establishing accessibility programs only after being sued. Documentation predating any knowledge of claims establishes genuine commitment rather than litigation response.

Damages Mitigation Through Good Faith

Statutory vs. Actual Damages

The ADA doesn't provide statutory damages; courts award damages based on plaintiff harm. This distinguishes ADA litigation from copyright or patent cases with defined statutory damages. In practice, this means damages vary dramatically based on case-specific factors, including defendant good faith.

Willful Non-Compliance Enhancement

Courts increasingly distinguish between inadvertent accessibility failures and willful non-compliance. Willful non-compliance—where organizations knew of accessibility requirements but failed to comply—results in substantially enhanced damages.

The difference between negligent and willful non-compliance often hinges on documentation. Organizations with documented accessibility programs face challenges establishing willful non-compliance; organizations demonstrating knowledge but complete inaction face willfulness findings.

Damage Reduction Examples

Scenario 1 (No Good Faith): Company receives accessibility complaint, ignores it for months, then gets sued. Damages likely exceed typical settlement range.

Scenario 2 (Partial Good Faith): Company has general accessibility awareness but no formal program. Upon discovering issues, begins remediation. Damages reduced from maximum potential.

Scenario 3 (Strong Good Faith): Company maintains documented accessibility program, conducts regular audits, remediates issues promptly. Damages reduced substantially; may influence settlement toward lower range.

Attorney Fee Awards

Plaintiffs typically recover attorney fees in accessibility cases. However, courts consider defendant good faith when assessing reasonable attorney fees. Organizations demonstrating good faith may face reduced attorney fee awards.

Settlement Positioning Through Good Faith

Negotiation Advantage

Defendants with documented good faith accessibility programs achieve better settlement positions. Plaintiffs recognize that cases against good faith actors are harder to win, creating downward settlement pressure. Cases against recalcitrant defendants face upward settlement pressure.

Class Certification Implications

In class action contexts, defendant good faith can influence class certification decisions. Courts consider whether defendant's accessibility efforts addressed class harm. Strong good faith programs may support arguments against class certification or for limited class scope.

Settlement Negotiation Framing

Defense counsel should emphasize good faith elements during settlement negotiations: "Our client has invested $X in accessibility, conducted Y audits, and remediated Z issues. These barriers represent inadvertent gaps in otherwise comprehensive accessibility program." This narrative improves settlement positioning.

Building Defensible Accessibility Programs

Foundational Elements

Organizations seeking to build litigation-defensible accessibility programs should establish clear foundational elements.

1. Written Accessibility Policy

Organizations should adopt formal accessibility policies committing to WCAG Level AA (or AAA) compliance. Policies should be endorsed by executive leadership and publicly available.

2. Accessibility Governance

Establish clear accountability for accessibility through designated roles (Chief Accessibility Officer, Accessibility Manager, etc.) and cross-functional accessibility committees.

3. Accessibility Training

Implement mandatory accessibility training for developers, designers, QA testers, content creators, and product managers. Maintain training attendance records.

4. Accessibility Testing Integration

Incorporate accessibility testing into development processes before production deployment. Maintain records of testing protocols and results.

5. Vendor Management

Establish formal vendor evaluation processes requiring accessibility documentation. Include accessibility requirements in vendor contracts.

6. Accessibility Auditing

Conduct regular accessibility audits (quarterly or annually) and maintain audit documentation. Use audits to identify issues and track remediation progress.

7. Issue Tracking and Remediation

Establish formal processes for tracking accessibility issues reported through user feedback, audits, or testing. Maintain records of remediation timelines and completion.

8. Continuous Monitoring

Implement ongoing monitoring to ensure accessibility maintains as content and functionality change.

Documentation Best Practices

What to Document

• Executive decisions: Board or executive team decisions regarding accessibility investment
• Hiring decisions: Recruitment of accessibility professionals
• Training: Training provided to teams with dates and attendance
• Audits: Accessibility audits conducted with dates, findings, and recommendations
• Remediation: Issues identified and remediation completion dates
• Vendor selection: Vendor evaluation criteria and accessibility considerations
• Feedback: Accessibility feedback received and responses

What to Avoid

• Discussing litigation strategy in emails (work with counsel using attorney-client privilege)
• Creating documents only after litigation threatens
• Documents admitting knowledge of specific violations without remediation plans
• Cost-benefit analyses suggesting ignoring accessibility is economically rational
• Contractor indemnification statements attempting to escape all accessibility responsibility

Document Storage and Retention

Maintain documentation in organized, retrieval-ready formats. Establish document retention policies ensuring accessibility records are preserved throughout litigation timeframes. Consult with counsel regarding litigation hold procedures if lawsuits are anticipated.

Post-Incident Strategies if Litigation Arises

Immediate Response

Upon learning of accessibility litigation exposure: engage experienced accessibility litigation counsel immediately, preserve all documents related to accessibility and the specific barrier at issue, conduct preliminary accessibility assessment of potential exposed areas, implement litigation hold to preserve relevant documents, and avoid public commentary on accessibility or the specific claim.

Assessment and Strategy Development

Work with counsel to evaluate claim strength and potential exposure, assess whether good faith defense elements exist, identify remediation opportunities that might support settlement, and develop litigation budget and timeline estimates.

Settlement Evaluation

Early settlement often provides advantages over protracted litigation. Cost-benefit analyses comparing litigation costs, potential damages, and settlement amounts should inform settlement decisions.

Industry Trends in Defense Strategies

Increased Technical Defenses

Defendants increasingly challenge technical expert testimony regarding accessibility violations. Sophisticated defendants hire accessibility experts to challenge plaintiff expert opinions. This creates incentive for plaintiffs to engage strongest experts and for defendants to understand technical accessibility arguments.

Good Faith as Emerging Standard

The industry is witnessing a shift toward recognizing good faith accessibility efforts as litigation-relevant factors. Organizations with documented programs increasingly achieve better outcomes than those without programs.

Remediation-Focused Settlements

Settlements increasingly focus on remediation requirements rather than pure financial awards. Defendants may agree to accessibility improvements, hiring accessibility staff, and ongoing monitoring in lieu of large financial payments.

Long-Term Strategic Implications

Cost of Accessibility vs. Cost of Litigation

The economic calculus clearly favors proactive accessibility investment. Accessibility remediation costs $50,000-$500,000 depending on website size. Litigation defense and settlement typically exceeds $300,000. From a purely financial perspective, accessibility is the rational choice.

Reputation and Business Impact

Organizations sued for accessibility violations face reputational damage beyond litigation costs. News coverage, customer perception, and employee recruiting implications persist after litigation concludes. Proactive accessibility avoids these reputational harms.

Industry Leadership Opportunity

Organizations establishing strong accessibility programs early position themselves as industry leaders, creating competitive advantages. As accessibility becomes industry norm, early adopters benefit from regulatory goodwill and brand reputation.

Key Takeaways

• Good faith defense doesn't eliminate liability but substantially reduces damages and improves settlement positioning.
• Documentation created before litigation holds far more weight than post-litigation documentation.
• Willful non-compliance results in substantially enhanced damages compared to inadvertent failures.
• Organizations should establish documented accessibility programs including policies, training, testing, and auditing.
• Strong good faith programs improve settlement outcomes and reduce litigation costs.
• Proactive accessibility investment costs substantially less than defending accessibility litigation.
• Demonstrated commitment to accessibility creates competitive and reputational advantages.

Resources

• Americans with Disabilities Act
• WCAG 2.1 Guidelines
• Lainey Feingold's Digital Accessibility Law
• SSBB Digital Accessibility Law Blog
• The A11y Project