Defending Against Accessibility Claims: Good Faith Strategies

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. 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. 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. 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.

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. 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. 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. 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.

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. 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. 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.

Organizations seeking to build litigation-defensible accessibility programs should establish clear foundational elements. Organizations should adopt formal accessibility policies committing to WCAG Level AA (or AAA) compliance. Policies should be endorsed by executive leadership and publicly available. Establish clear accountability for accessibility through designated roles (Chief Accessibility Officer, Accessibility Manager, etc.) and cross-functional accessibility committees. Implement mandatory accessibility training for developers, designers, QA testers, content creators, and product managers. Maintain training attendance records. Incorporate accessibility testing into development processes before production deployment. Maintain records of testing protocols and results. Establish formal vendor evaluation processes requiring accessibility documentation. Include accessibility requirements in vendor contracts. Conduct regular accessibility audits (quarterly or annually) and maintain audit documentation. Use audits to identify issues and track remediation progress. Establish formal processes for tracking accessibility issues reported through user feedback, audits, or testing. Maintain records of remediation timelines and completion. Implement ongoing monitoring to ensure accessibility maintains as content and functionality change.

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.

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

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. 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. 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.

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. 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. 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.