A little over 10 years ago, we were able to bring a dream — one that started in the virtual world Second Life — into reality. We knew that there was a demand for quality, artistically beautiful, body-safe and ecologically friendly adult toys, and after a considerable investment of time and energy, our company carved out a very special place in our customers’ hearts. We’ve always led with our values and ethics, focusing on serving sex-positive communities, paying an ethical wage, and donating to charities around the U.S.
So, imagine our shock when we answered a knock at the door and were handed a legal document notifying us that we were being sued because our website was not ADA compliant. Being ADA compliant means that your website provides effective communication and full, equal and meaningful access. Like most small businesses, we’d researched all the various shopping platforms and ways to ensure that customers could easily navigate the site, we’d talked with industry experts, and we’d done SEO work to ensure clarity. We’d never heard any complaints — so what did we do wrong?
Being ADA compliant means that your website provides effective communication and full, equal and meaningful access.
We found out that this was, sadly, not uncommon for companies of all sizes. In the past five years, both Domino’s Pizza and Winn Dixie Foods have been sued for having non-compliant websites, and while these cases will take a while to make their way through the courts, a number of other claimants have also specifically targeted websites that do not meet ADA standards. Don’t get us wrong. We want ADA standards for websites, to ensure that every person can use them easily. However, the ADA can be interpreted in ways that make it almost impossible to create a clear and consistent website strategy for accessibility.
In this situation, we did what many other small business owners can probably relate to: we panicked. We started talking with other adult industry businesspeople and web developers, contacted a few lawyers, and examined our options. What we discovered was pretty dismal. It would cost us plenty of money to retain a lawyer to respond to the suit. If we did end up settling, all the lawyers we spoke with estimated the cost would be somewhere between $14,000 and $25,000, plus lawyers’ fees which looked to be substantial as well.
Even more challenging — and frankly, part of the reason that I wanted to speak out about our experience — is that these suits are being filed by a very small number of claimants, and in our opinion, for very wrong reasons. We found out that the person that brought suit against us has sued over 200 businesses (many within our industry) with the same complaint. While we believe that all companies should be obligated to ensure accessibility for all customers, when people decide to file legal suits en masse, the net effect is that it limits the ability of the business to devote resources to correcting the issues, instead requiring time and money to resolve the lawsuit itself. Worse, this isn't about accessibility; this is simply about lawyers making money! The lawyers that bring the suits and the lawyers that defend them.
In the end, we reached out to the claimant’s attorney and ended up settling with them directly for significantly less than the initial estimates of the attorneys.
However, we also put in lots of time, energy and money to review what we could do to create a better site. This was primarily to address any ways that we could provide a more accessible experience for our customers, but also to learn what we should be doing on an ongoing basis to encourage better accessibility.
We decided to look at ways we could improve our communication — and better clarify our intentions — through our website. We have created an expanded, updated accessibility statement and are ensuring that people have multiple ways to reach out to us (including phone, TTY and email), should they have any questions. This will be an ongoing process.
In terms of technology, we learned that, when working with many of the drag-and-drop website builders that we all use, the changes that you make to each page may be written over by the system, and links will break without any warning. You must pay strict attention to the overall health and navigability of your site. There are a number of vendors that offer ongoing scanning to identify necessary changes; in some cases, the system will make those changes for you. This offers you some peace of mind in terms of having documented proof that you, as the website owner, are performing regular inspections in order to ensure accessibility. If you end up in court, this document will show the court you were aware of your obligation and are trying your best to meet it. We also recommend getting an accessibility report drawn up; we engaged with a consultant to create one, and there are people who can help you that are specifically trained to be aware of (and sensitive to) the needs of a
If you’ve also been served by an ADA suit, we’re sorry to welcome you to the club. However, we’d like to share some things to keep in mind as you navigate this challenge.
While this was a scary experience, try to avoid responding while you’re in panic mode. The summons and complaint will detail when you must respond to avoid a summary judgement. Take that time to de-escalate and do some research and talk to other businesses that have been through this situation.
Speak with more than one attorney if you can. We did, and while the first two both suggested the same option (settling for the $14,000-plus that was the “standard”), in the end we pursued a course of action that didn’t require a lawyer at all! There are trusted attorneys who work with adult industry businesses, and they can offer guidance to help you determine your next steps.
Remember to lead with your own values and ethics. Among the suggestions that one attorney made to us was that we should reach out directly using a pre-written letter that had several spelling and grammatical errors, as it would be “more real.” However, the idea of sending a letter like this didn’t match our ethics. We did not let the panic of the experience push us towards behavior that wasn’t representative of Crystal Delights, and we highly suggest that you take all recommendations with a grain of salt and give yourself an opportunity to determine what’s right for you and your company.
Submit the claim to your insurance company. We did, and while we received an immediate denial, we are appealing that decision — again, based on the advice that we got from an attorney that we trusted, and who has dealt with insurance practices in their work. You may not be able to claim the expense, but insurance should at least be considered when deciding how to proceed after you’ve been served. If you don’t yet have insurance, make sure this is included in any discussions that you have with your agent, as this is a problem that we don’t expect will soon go away.
In the end, our company will survive this — and we’ll come out of it better, and even more in line with our values, ethics and goals. We’ll survive it because when it happened to us, we were able to reach out to our community of adult industry professionals, learn from their experiences, and find representation that was skilled in handling these kinds of suits. We’ll end up thriving because we’re putting what we learned into practice to create an even better user experience for our website. In the end, our customers trust that we have their best interests at heart, and we want to continue to prove that we’re worthy of that trust.
Unfortunately, this experience has also led us to conclude that the apparently common strategy of targeting businesses like ours in this manner is not a genuine or effective way to make sure that the needs of people with disabilities are adequately addressed. Instead, it is just another cynical scheme to profit off of people with disabilities and the regulations designed to help them.
Finally, we would like to take just an additional moment to say this was a humbling experience for us. We had to take a direct look at how it felt to be “impaired,” to be limited in doing what we wanted, when we wanted. We all can buy our way out of this, but it wasn't lost on us that the very people being represented in these suits cannot buy their way to more accessibility; that is why we have a responsibility to help them make it happen. We are sorry we didn't understand and didn't get it, but we do now and will continue to do better.
Shellie Yarnell is the executive creative director of Crystal Delights.
