2022 saw an increase in digital-based accessibility lawsuits in the United States. A total of 2,387 website accessibility lawsuits were filed by the end of the year, according to Accessibility.com’s 2022 report. This is a slight increase (1.5%) from 2021’s total of 2,352, and an increase of over 14% from 2020.
So, what has led to this increase?
One reason cases rose is a lack of clear, actionable guidance within accessibility legislation.
The Americans with Disabilities Act (ADA) prohibits discrimination based on disability. These laws apply to businesses, as well as their facilities. Based on the precedent set by the Robles v. Domino’s Pizza, LLC case, this also includes websites and mobile apps.
But, as Linda Sanabria writes in an article posted by Accessibility.com, “... 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 other words, accessibility laws are clear about what businesses should (and should not) be doing but not necessarily how to do it.
However, if these laws have been in place for so long, how can that lead to increased rates?
In March of 2022, the U.S. Department of Justice (DOJ) published guidelines on maintaining website accessibility. However, this guidance, too, needed more actionable clarity and left many businesses vulnerable to civil suits.
For instance, the guidance makes a point to state that companies “…have flexibility in how they comply with the ADA’s general requirements of nondiscrimination and effective communication. But they must comply with the ADA’s requirements.”
The use of the term “flexibility” has caused some issues. As Locke Lord LLP noted in a post on JD Supra, “such a standard will be subject to interpretation and does not provide the clarity of a more defined safe harbor.”
Although having “flexible standards” gives businesses more freedom in achieving accessibility, it provides too much freedom. Businesses are left in a risky situation without a clear and designated course of action.
The spike in lawsuits over the last few years illustrates that vulnerability.
To further examine contributors to this lawsuit increase, let’s look at the two states that saw the most cases, New York and California.
California law has high standards concerning accessibility. To better understand this, let’s break down California’s Unruh Civil Rights Act and its relation to the ADA:
The Unruh Civil Rights Act (Unruh for short) offers protection from discrimination by all California businesses (even housing and public accommodations). Citizens may not be discriminated against based on age, national origin, race, religion, sex, sexual orientation, or disability.
Sound familiar? The ADA similarly asserts that
“...no qualified individual with a disability shall, because of such disability, be excluded from participation in or be denied the benefits of services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.”
According to a post by the law firm; Rogers, Joseph, and O’Donnell, “California Courts Apply the ADA and Unruh Civil Rights Act to Website Accessibility Claims.”
What does this mean?
It means that civil cases regarding website accessibility are determined by rules outlined by the ADA and the Unruh Civil Rights Act.
Rogers, Joseph, and O’Donnell write, “in addition to the remedies available under the ADA, the Unruh Act allows for statutory damages of $4,000 for each denial of public accommodation or three times the actual damages, whichever is greater.”
In other words, Unruh allows for added compensation for plaintiffs in an ADA-based suit. This, coupled with the DOJ’s guidance, allowed increased opportunity and incentive to file civil accessibility claims.
Several firms and plaintiffs are filing lawsuits under the new, ambiguous DOJ guidelines, as evidenced by the uptick in California suits.
The same can be said for New York.
New York also saw an uptick in 2022’s digital accessibility lawsuits. In fact, New York saw just under 70% of the total lawsuits for 2022, up from 2021.
New York doesn’t have any additional protections or legislation (like California’s Unruh) that could apply to website accessibility. What New York does have, is a high concentration of law firms specializing in ADA cases. The top 3 most litigious firms in 2022 were consistently based out of New York, each filing more lawsuits in 2022 than the top law firm in 2021.
One such firm is Mizrahi Kroub LLP which filed the most civil ADA cases in 2022. Mizrahi Kroub is a law firm with a history of filing ADA-related class action suits.
The firm and its partners have a reputation for being particularly litigious. According to an article by the Daily News, Mizrahi filed over 400 accessibility lawsuits for 13 clients before the end of 2018.
All of these cases were on behalf of clients filing civil ADA-based cases.
Mizrahi Kroub also has a reputation for filing suits on somewhat dubious grounds. This can be seen in their 2022 case, Weekes vs. The US Tennis Association (USTA).
In this case, the defendant made confusing claims of being unable to purchase an “eclectic” list of merchandise from the USTA website due to its accessibility. The USTA is not a merchandise retailer. Due to these shaky claims by the defendant, a motion was filed to dismiss the case.
This should not be taken to mean that most digital accessibility lawsuits are based on bogus claims.
Another prolific law firm in New York is Mars Khaimov, representing plaintiffs in the high-profile Brown vs. Hello Fresh. This case, on the other hand, held less shaky claims. The defendant alleged that Hello Fresh, the popular meal delivery service, had a website incompatible with screen readers.
The New York data shows that many law firms are more than willing to pick up on ADA-based suits, legitimate or otherwise.
As it stands, businesses find themselves in a precarious legal position. This trend of rising suits, among other things, speaks to the risks they face by not ensuring that their platforms are accessible. As the DOJ effect indicates, accessibility legislation leaves businesses somewhat in the dark.
However, as ambiguous as some of these legislations can be, the penalties for not following them need to be clarified. California law states that businesses face substantial penalties if found guilty of inaccessibility.
This trend also highlights the opportunistic disposition of many law firms. Regardless of the sometimes suspect nature of some of these cases, it shows that lawyers are on the alert and more than willing to file ADA cases.
Finally, this rise in lawsuits highlights how important it is for businesses to ensure they stay accessible. The cost of not doing so can be perilous. As such, businesses need to take extra steps to meet accessibility standards on their websites and apps.
As an essential step, businesses should ensure that their content follows mandates outlined by the Web Content Accessibility Guidelines (WCAG). Following the steps outlined by WCAG is a great first step for businesses to protect themselves and ensure an accessible experience for their customers.
For more details on how to protect your business from accessibility suits, check out our recent article on digital accessibility lawsuit trends. Catch our online event today, Tuesday, January 24th, at 1 PM, as we review the report. Register here.