What does 'good faith effort' mean in an ADA website case?

Good faith effort is a pattern of documented, ongoing accessibility work that courts have weighed when evaluating Title III defendants. It is not a formal legal doctrine but a practical factor. The elements include a written accessibility policy, a published accessibility statement, dated audits, a remediation log, training records, and a responsive feedback channel.

What did the Kroger ADA case establish about good faith effort?

In the 2020 Kroger case, the defendant successfully argued that its documented, ongoing accessibility program satisfied its Title III obligations. The court weighed the existence of a written policy, continuous audit and remediation activity, training, and engagement with user feedback. The factors from that reasoning have been cited in subsequent cases.

Does installing an accessibility overlay count as good faith effort?

No. Courts have rejected overlay presence as a defense. The Federal Trade Commission has acted against overlay vendors for false claims. Plaintiff firms cite overlay presence as evidence of awareness of accessibility obligations combined with failure to substantively remediate. Removing the overlay and replacing it with an accessibility program is stronger than leaving it in place.

Can one accessibility audit establish good faith effort?

A single audit followed by silence is reactive, not ongoing. Courts have generally not accepted it as good faith effort. The pattern that works is audit + remediation + feedback response + repeat. By month six, a documented multi-audit program with training and a feedback log is the profile courts have recognized.

How long does it take to build a good faith effort record from scratch?

Six months of consistent activity. Week one: policy and baseline scan. Weeks two to three: published accessibility statement, start of remediation log. Weeks four to twelve: weekly remediation, one training session. Month four: second audit. Month six: third audit with updated statement. The cadence matters more than the completeness.

Legal

How to Prove Good Faith Effort for ADA Compliance

Good faith effort is the defense that wins ADA website cases without a perfect site. Here is what courts have accepted and what they have rejected.

Published by Startvest LLC SDVOSBApril 13, 20267 min read

A small business with a perfect WCAG 2.1 AA-conformant website does not exist. The site at Amazon does not fully conform. The site at the Justice Department has had findings. Neither does yours.

The defense that matters for sites that are not perfect is good faith effort. A demonstrated, documented, ongoing effort to comply. This article describes what that looks like in court.

What good faith effort is

Good faith effort is not a specific legal doctrine in ADA Title III. It is a pattern of factors that courts have weighed when evaluating whether a defendant took the ADA seriously. Some courts have treated it as a partial defense. Some have treated it as a mitigating factor at remedy. Some plaintiffs have treated demonstrated good faith as a reason to settle for less or to walk away.

The clearest demonstration of good faith effort comes from the 2020 Kroger case, where the defendant successfully argued that its accessibility program, documented and ongoing, satisfied its obligations under the statute. The court's reasoning has been cited repeatedly since.

The elements the court looked at then are still the elements that matter now.

The elements courts weigh

A written accessibility policy

A one-to-two page document that commits the organization to accessibility, names a responsible owner, and sets a conformance target. The existence of the document matters. The specificity of the target matters. "We strive to be accessible" is weaker than "We target WCAG 2.1 Level AA conformance and review quarterly."

Evidence that the policy predates the claim

A policy drafted the week the demand letter arrived carries less weight than one that predates the letter by a year. Date everything. Preserve email chains that show internal discussion of the policy at the time. File it in a system with a timestamp that cannot be backdated.

An actual ongoing program, not a single effort

Courts look for evidence of continuous activity. Quarterly audits. An updated remediation log. Training records spread over time. A feedback channel that responded to reports. One annual audit followed by twelve months of silence is weaker than four quarterly audits with remediation in between.

Engagement with users who reported problems

A user feedback log that shows reports received, acknowledged, and addressed is direct evidence of engagement. A log with reports that went unanswered is direct evidence of the opposite.

Use of qualified personnel

Either internal staff trained in accessibility, or engagement with an accessibility consulting firm. Named individuals. Dated work product. Qualifications noted.

Procurement practices that reflect the policy

Contracts with key vendors that include accessibility requirements. Evaluation of vendor VPATs. Alternative arrangements where a vendor cannot meet the standard. This shows the policy extends beyond the site itself to the broader technology stack.

A remediation record that shows prioritization

When a site has violations, the question is not whether violations exist. It is whether the organization has a rational plan to address them. A remediation log that prioritizes high-traffic pages and critical user flows is stronger than one that looks random.

What courts have rejected as good faith effort

The installation of an accessibility overlay is not good faith effort. Courts have explicitly rejected overlay presence as a defense in multiple cases. The Federal Trade Commission has taken action against accessiBe for false claims made in its marketing. Plaintiff's counsel often cite overlay presence as evidence of an attempt to mask accessibility failures rather than address them.

If your current site has an overlay installed, removing it and replacing it with an accessibility program is stronger than leaving it in place. The full case against overlays covers the general legal precedent, and our accessiBe FTC settlement breakdown details the specific regulatory order.

An accessibility statement with no supporting program

An accessibility statement that claims WCAG 2.1 AA conformance, published on a site with hundreds of automated scanner findings, is worse than no statement. The statement becomes an admission that the organization knew the standard and did not meet it.

Statements should be honest. Known limitations should be listed. The commitment should be specific.

Reactive remediation only

A site that was never audited until a demand letter arrived, and then was audited and fixed, demonstrates reaction to threat. Courts have generally not treated this as good faith effort unless the reactive response became an ongoing program.

One pass through axe DevTools the week a letter arrives, followed by quiet, is reactive. One pass followed by a published plan, quarterly audits, training, and a feedback channel is the start of an ongoing program.

Vendor-only reliance

Outsourcing all accessibility work to a third party without internal ownership is weaker than having an internal owner who engages a vendor. The internal owner is what demonstrates ongoing engagement.

What courts have accepted beyond the Kroger baseline

Some defendants have strengthened a good faith defense with additional elements.

Published remediation timelines

A public commitment to address specific findings by specific dates, with a progress update page that shows work completed. This is more aggressive than most small businesses will do but it is the strongest signal available.

Accessibility-focused hiring

Evidence that the organization hired or retained staff with accessibility credentials. A named individual with an IAAP certification on the team, with their engagement dated, is direct evidence of investment.

Beta testing with disabled users

A program that recruits actual users of assistive technology to test new features before launch. Payment records for testers. Test reports. Bug fixes attributable to the program. This is the highest-effort element and the rarest to find at a small business, but it carries significant weight.

Conformance reports from independent evaluators

A third-party Accessibility Conformance Report, signed by an evaluator outside the organization, carries more weight than an internal audit. Not because the internal audit is wrong. Because the independence is the point.

How to build the good faith record if you do not have one

Start from where you are. Not where you wish you were.

Week one. Draft a one-page accessibility policy. Sign and date it. File it in a timestamped system. Run an automated scan of your top five pages. Save the report with date.

Weeks two and three. Publish an accessibility statement on your site. Include a feedback email that a real person monitors. Start a remediation log. Fix the three most severe findings from the scan. Log each fix.

Weeks four through twelve. Continue remediation weekly. Log continues. Conduct one basic accessibility training for the site-maintenance team, even if that team is one person and the training is a one-hour video. Record attendance.

Month four. Second audit of the same top five pages. Compare to the first. Document what improved. Respond to any feedback-channel reports that came in.

Month six. Third audit. Expanded to more pages. Publish an updated accessibility statement noting the progress.

By month six you have a documented, ongoing, multi-audit program with training, remediation, and user engagement records. That is the profile courts have accepted as good faith effort. The complete documentation checklist is the artifact inventory that supports this record.

The program is cheaper and faster than a federal court filing. It is also the thing that makes a demand letter less likely to arrive in the first place.

What this is not

This article describes the pattern of behaviors courts have accepted. It is not a guaranteed defense. It is not a substitute for engaging counsel in an active matter. Good faith effort is a partial defense in some contexts and not a defense at all in others, depending on jurisdiction and the specific facts.

For an active demand letter or claim, consult a licensed attorney in your jurisdiction. For building the program before a claim arrives, this article is the pattern you want to follow.

Get the documentation a judge will ask for.

Nine documents that courts have accepted as good-faith effort. With owner, review cadence, and fillable fields.

One email. The download link. No newsletter until you opt in.

Don't want to share your email? Read the template online →

Frequently asked questions

What does 'good faith effort' mean in an ADA website case?: Good faith effort is a pattern of documented, ongoing accessibility work that courts have weighed when evaluating Title III defendants. It is not a formal legal doctrine but a practical factor. The elements include a written accessibility policy, a published accessibility statement, dated audits, a remediation log, training records, and a responsive feedback channel.
What did the Kroger ADA case establish about good faith effort?: In the 2020 Kroger case, the defendant successfully argued that its documented, ongoing accessibility program satisfied its Title III obligations. The court weighed the existence of a written policy, continuous audit and remediation activity, training, and engagement with user feedback. The factors from that reasoning have been cited in subsequent cases.
Does installing an accessibility overlay count as good faith effort?: No. Courts have rejected overlay presence as a defense. The Federal Trade Commission has acted against overlay vendors for false claims. Plaintiff firms cite overlay presence as evidence of awareness of accessibility obligations combined with failure to substantively remediate. Removing the overlay and replacing it with an accessibility program is stronger than leaving it in place.
Can one accessibility audit establish good faith effort?: A single audit followed by silence is reactive, not ongoing. Courts have generally not accepted it as good faith effort. The pattern that works is audit + remediation + feedback response + repeat. By month six, a documented multi-audit program with training and a feedback log is the profile courts have recognized.
How long does it take to build a good faith effort record from scratch?: Six months of consistent activity. Week one: policy and baseline scan. Weeks two to three: published accessibility statement, start of remediation log. Weeks four to twelve: weekly remediation, one training session. Month four: second audit. Month six: third audit with updated statement. The cadence matters more than the completeness.