Web Accessibility Lawsuits on the Rise

Published August 26, 2021

State and local governments, as well as higher education systems and private entities, continue to struggle with developing online accessibility programs. Services that are critical to independent living, as well as the safety and well-being of citizens with disabilities, are often offered exclusively online.

The Access Board takes action

In a step to clarify expectations and address publicly funded accessibility barriers on the web, the United States Access Board, the federal agency tasked with the design and development of accessibility guidelines and standards, adopted the Web Content Accessibility Guidelines (WCAG) as published by the World Wide Web Consortium (W3C) in 2017  and became effective in 2018. The Access Board's adoption of WCAG added prominence to WCAG's standing as a standard to measure web accessibility and was expected to have an immediate impact on federal agencies and organizations that receive federal funding, such as State and local government and higher education; but private entities were left out.

Since the Access Board's ruling, disability rights agencies and affected citizens have tried to clarify the responsibilities of private entities and others covered by Title III of the Americans with Disabilities Act (ADA) as well through advocacy and enforcement activity, with mixed results. In 2017 those efforts reached a tipping point when over 800 federal lawsuits were filed alleging inaccessible websites. By 2018, the number of web-accessibility lawsuits more than doubled to nearly 2,300 cases. As cases continued to increase year-over-year, businesses began to look to the courts for clarification.

In 2019, the Supreme Court was even asked to weigh in on the issue when Domino's Pizza asked the bench to review a 2018 decision, Robles v. Dominos, by the Ninth Circuit Court of Appeals, which held that Domino's website and mobile application should be accessible and were considered a place of accommodation as defined by the ADA (the Supreme Court declined to review the case).

While disability rights organizations across the country celebrated the Robles v. Dominos decision, the legal principles it affirmed by no means settled the question of a Title III entity's obligation to make its website accessible against any definitive standard. In another ruling just two years later, Gil v. Winn Dixie, the Eleventh Circuit Court of Appeals held that websites were not places of public accommodation, conflicting with the Ninth Circuit's earlier ruling and setting the stage for a circuit split which will likely delay any definitive conclusion on the matter in the near future.

Without defined standards, business leaders say, it is difficult to understand how to reach the appropriate level of compliance as required by the ADA. Title III of the ADA requires covered entities that serve as "places of public accommodation" to remove "access barriers" that inhibit access to goods and services but does not specifically address websites and other information and communication technology.

In the interim, Congress has continued to struggle with the issue. In October 2020, a bill calling for official Web Accessibility Guidelines, the Online Accessibility Act (H.R. 8478), was introduced but failed to pass before the 116th Congress was adjourned in 2021. The proposed legislation would have established accessibility standards for private entities while also amending the ADA to introduce mandatory periods to shield businesses from enforcement activity. Lainey Feingold, a disability rights attorney in California opposing the bill, wrote 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."

With so much at stake, the question many leaders want to know is: where will accessibility go from here and what can we do to ensure our online presence is compliant?

The Future of Accessibility

Until clear guidance exists, businesses that have not adopted an accessibility program will remain exposed to liability if their websites are not accessible to citizens with disabilities and users of assistive technology. What's more, accessibility layovers that have become popular in the last several years do not appear to be slowing down the trend (in July Accessibility.com detected that 52% of websites that faced litigation over accessibility issues used layovers, up from 6% the month before). Organizations will have to decide whether the murky legal environment and potential loss of revenue is motivation enough to take compliance efforts into their own hands.

Steps You Can Take Now

Executive leadership should be proactive and adopt standards that meet the needs of their customers. Soliciting feedback from the communities they serve, defining the barriers that exist, and developing repeatable and manageable processes to address those barriers will show good faith and serve as a catalyst for the development of an accessible and inclusive culture of digital accessibility. Leaders should also consider consulting with accessibility experts to identify how they can ensure their organization's technology is as accessible and usable as technologically feasible. Doing so will only improve the user experience and open access to a growing and expanding market that is still being realized.

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