Litigation over web accessibility shows no sign of slowing down. In fact, such lawsuits filed thus far in 2021 add to the steady growth trend which started in 2017. The increase in the number of these suits from 2017 to 2018 was particularly large, with 175% more suits filed in the latter year than the former. The slight decrease of accessibility lawsuits in 2020 appears to reflect the impact of the initial phase of the Covid-19 pandemic in the first half of the year. During the second half, there was a return to the now-familiar growth pattern, with digital accessibility lawsuit filings in December 2020 the highest on record to that date.
These trends continue with a robust pattern of lawsuits filed in 2021 in both federal and state courts. It is more difficult to verify the number of state court filings compared to federal claims due to inconsistent state reporting approaches. However, the evidence gleaned from available data does indicate a continuing surge in state court digital accessibility lawsuits, with the vast majority of these cases brought in California and New York where state law provides more favorable environments for claimants which allow for the recovery of monetary damages.
Key takeaways for October 2021
Our most recent data reveals some sobering statistics for November 2021 alone:
- There were 398 website accessibility lawsuits filed in the month.
- Four Plaintiffs were responsible for filing 47% of all of the month's digital accessibility lawsuits.
- The Mizrahi Kroub LLP law firm brought the most such lawsuits of any firm in November, filing 218 Complaints in New York.
- Most lawsuits (77%) were filed in New York with California coming in second at 17%.
Lawsuits may tell only part of the story
We simply do not know for certain how many digital accessibility demand letters, often precursors to litigation, are sent to potential defendants each year. From that group of demand letter recipients, we are also not able to discern just how many recipients decided to reach a private settlement with the claimant. It is fair to say, however, that digital accessibility lawsuits probably represent but a fraction of the actual number of demand letters sent each year.
As the first step in the litigation process, demand letters, with variations and different levels of detail, make the basic claim that the target company is currently violating Title III of the ADA or Section 508 of the Rehabilitation Act of 1973 because the letter recipient’s website or app is not readily accessible to people with disabilities. The letter goes on to warn that if the company fails to modify its site to meet a referenced standard like the Web Content Accessibility Guidelines (WCAG), the company risks litigation. As stated, the outcome of all this is usually a financial settlement.
2021 and the trends revealed
Lawsuits filed in the first half of 2021 in the United States broadly claiming that websites, as well as related apps and digital videos, were not accessible to people with disabilities increased by 64% compared with the same filings during the first half of 2020. Though it is likely that some of this was due to the frequency of pandemic lockdown orders during early 2020, this is still a significant increase.
There were 1,161 such lawsuits filed during the first half of 2021 which alleged that websites and related digital entry points violated either the ADA or specific state statutes such as California’s Unruh Civil Rights Act.
Over the past several years, there has been a notable increase in the number of digital accessibility lawsuits filed across the country each year in state and federal courts. In 2020, there were 2,058 lawsuits filed, in which, approximately 20% were filed by 6 plaintiffs.
Who is getting sued?
Not surprisingly, e-commerce companies were the most frequent targets for digital accessibility lawsuits from January 1 to June 21 of 2021. These companies were defendants in 74% of the federal website accessibility suits filed during this period. Smaller companies with annual revenue below $50 million were targeted about two-thirds of the time during the January 1 to June 21 period.
In October 2021, the following five categories of businesses were digital accessibility lawsuit targets more than 65 percent of the time:
- Consumer discretionary – 24%
- Consumer staples – 13%
- Consumer durables and apparel – 12%
- Software and services – 9%
- Healthcare equipment and services – 9%
Certainly, as the use of e-commerce increased dramatically during the pandemic, accessibility challenges became more apparent to the growing group of online shoppers. However, this may not be the only reason for the continued acceleration of claims. Some accessibility advocates point to a lack of priority given to the incorporation of accessibility features into the development and design of new products and services.
Impact of court decisions - Domino’s Pizza v. Robles
A recent decision in a case that had gained the attention of digital accessibility advocates and companies alike may have had an impact on the aggressive approach of plaintiffs reflected in these trends and likely in additional further lawsuits.
In a widely anticipated decision on October 7, 2019, the U.S. Supreme Court denied, without comment, an appeal from the Ninth Circuit’s decision in Robles v. Domino’s Pizza which had held that the Domino’s website is required to be made accessible to people with disabilities.
The plaintiff, Guillermo Robles, who is blind, had originally sued Domino’s Pizza in 2016 because of his inability to order from Domino’s website utilizing a screen reader program. The original federal court decision left intact with the Supreme Court ruling held that Domino’s had violated the ADA and ordered a fix to Domino’s website.
The threshold case brought together a host of business groups that had argued that the ADA should not apply to online website platforms like Domino’s because the 1990 drafters of the ADA could not have envisioned such platforms and had therefore intended that accessibility requirements apply only to brick and mortar businesses. Additionally, the business interests argued that the approach was unfair because there are no clear standards established by Congress or the courts on how and to what extent, digital platforms should be made accessible.
With the case remanded following the Supreme Court decision, on June 23, 2021, the original California trial court granted a partial Summary Judgment ruling that Domino’s had violated Title III of the ADA by not providing a website that was fully accessible. The ruling acknowledged that the Domino’s website was not an actual place of public accommodation as defined in the ADA, but nevertheless held that an inaccessible website “impedes access to the goods and services of its physical pizza franchises—which are places of public accommodation.” The court directed Domino’s to make its website compliant with WCAG 2.0 standards.
The case was settled in November of this year though no details of the agreement were disclosed.
Conclusion
With consumer and business engagement moving increasingly online, 2020 and 2021 have seen the continuation of the trend of more litigation over digital accessibility. Website accessibility litigation has become an industry unto itself during the past several years and all indications are that this litigation will not ease up any time soon.
In truth, we are likely to see continued expansion of digital accessibility lawsuit initiatives until consistent guidance on the steps a company can take to avoid these suits is developed. That responsibility ultimately rests with Congress though the Department of Justice also has the ability to clarify rules in this area. Until then, it is not likely that the Supreme Court will wade into the significant split of decisions in the Circuit Courts regarding acceptable steps to make a website ADA compliant. Businesses need to be aware of the ongoing risks and proactively work to make websites as accessible as possible.
Comments