Americans With Disabilities Act (ADA) based digital accessibility lawsuits are on the rise, as are disability lawsuits in general. Why now?
An increasing number of lawsuits, the majority of which are filed by people who have sight or hearing disabilities, report that businesses’ websites are not accessible, and that said websites are not only discriminatory but are also in violation of various local, state, and federal laws. The number of website accessibility lawsuits has increased by over 200% since 2017.
The American Bar Association (ABA) has found that over 8,000 digital accessibility lawsuits have been filed or removed in federal courts between 2017 and 2020. Since 2018, website and mobile app accessibility lawsuits have made up approximately one-fifth of all ADA Title III filings in federal courts, which now exceed 10,000 lawsuits annually. Note that the aforementioned numbers do not include the amount of website and mobile app cases filed in state courts, demand letters resolved prior to the filing of a lawsuit, and DOJ enforcement actions that resolve the issue before a lawsuit is filed.
What’s causing this increase?
The vast majority of lawsuits towards businesses are alleging ADA Title III violations related to website accessibility. Title III of the ADA prohibits discrimination in places of public accommodation against persons with disabilities. Companies also are culpable for ADA claims regarding service animals, effective communication (e.g., sign language interpreters), self-service kiosks, etc.
The ADA does not provide specific guidance for designers and developers. In 2003, the Department of Justice (DOJ) issued guidance for Accessibility of State and Local Government Website for People with Disabilities, but even this − intended for State and local government − is somewhat vague by Web Content Accessibility Guidelines (WCAG). The DOJ's white paper instead focuses on identified best practices to web accessibility, like including alternative text in images and providing a link for users to request accessible services − guidance that would be, by and large, not remotely sufficient to prove an organization has done its due diligence in accessibility if prompted by legal activity.
Unlike some laws in other countries, the ADA does not advocate or mandate a specific set of standards to meet accessibility requirements, which often leads to confusion among business owners. In 2021, the 116th Congress attempted to pass the Online Accessibility Act (H.R. 8478), which would have required covered entities to meet WCAG 2.0 AA minimum requirements. While some argue that prescriptive legislation such as H.R. 8478 may set too high a bar, some business owners are just looking for guidance and legal protection.
That protection is precisely what some advocates in the disability rights community lobbied against in their opposition to the bill.
Lainey Feingold, a disability rights attorney in California, opposed the bill, writing that "the bill limits the rights of people with disabilities to enforce the ADA through private lawsuits and only addresses a fraction of the ADA's technology coverage."
Without clear guidance though, organizations have faced a binary choice in digital accessibility − to forgo accessibility altogether or work towards the virtually aspirational WCAG 2.0/1 AA requirements.
Until Congress, the U.S. Access Board, or the DOJ have the ability to provide clear and unimpeachable guidance on how organizations can ensure their digital technology is accessible, many see a trend in legal activity in this space.
Attorneys expect the amount of ADA Title III website accessibility lawsuits to continue to increase until there is a substantial change in the law. The more appropriate alternative, however, is for a significant change in businesses’ digital accessibility strategy − for example, developing and implementing accessibility inclusion initiatives intended to ensure equal access for all patrons, rather than meet a legal requirement.
Ultimately, when businesses fail to make their websites and services accessible, they are discriminating against millions of disabled Americans, keeping them from being able to equally participate in the same websites and services that persons without disabilities are able to access.
In lieu of official guidance from Washington, it appears that the best strategy may be to follow the U.S. Access Board's lead in accessibility. In 2018, the U.S. Access Board recommended that Federal agencies adopt WCAG 2.0 AA as a minimum requirement, replacing outdated Section 508 standards.