Helping Clients Navigate ADA Website Compliance
& The “Murky Underworld” of ADA Website Accessibility Lawsuits
Few things are more intimidating to a business owner, especially a small business with relatively limited resources, than being served with a lawsuit claiming their website is not compliantly accessible and therefore violates the Americans with Disabilities Act (ADA) or similar state laws (most commonly the Unruh Civil Rights Act in California and similar accessibility law in New York). While the passage of the ADA in 1990 was aimed at ensuring that those with disabilities can be equal members of society, the way the law was drafted has resulted in unintended consequences where businesses not meant to be within the scope of the law, mainly stand-alone e-commerce websites, are subjected to “a contagion of lawsuits.” After being served with an ADA lawsuit, business owners learn that there is a seemingly murky underworld of lawyers and “serial plaintiffs” who have taken advantage of a law that had good intentions aimed at helping the significant numbers of disabled people and instead created a thriving “cottage industry” at the expense of small business owners who are often struggling to keep their businesses afloat.
ADA Lawsuits Alleging Website Non-Compliance Are Proliferating
Unfortunately, the number of ADA lawsuits alleging website non-compliance due to lack of accessibility is increasing exponentially. According to a recent report, while there were only 117 lawsuits filed in 2017 based on ADA website accessibility issues, in 2023, 4,334 such lawsuits were filed, with only a minor decrease from 2022. Further, ADA Title III lawsuits, including those not in the website context, numbered over 8,000 – with California and New York leading. It is no wonder that more and more business owners find themselves panicking as they learn they are the defendants in an opaque lawsuit. After all, there are no clear rules as to what constitutes an accessible website, in particular, since the World Wide Web Consortium and the Web Content Accessibility Guidelines (WCAG) are not legal standards per se. While the Department of Justice has put out guidance on various aspects of the ADA in the context of website compliance, there is much to be desired, including questions about how different versions of a website aimed at ensuring accessibility are deemed “segregation.” Sure, there are a variety of best practices, but many of these are arbitrary. As a matter of fact, even the DOJ is not compliant with the accessibility standards they refer to. Still, some of the most common allegations concerning lack of website accessibility revolve around lack of alternative text for images, lack of captions, poor color contrast, lack of labels for forms, and lack of captcha alternatives, among other design components.
As if the regulatory clarity vacuum is not enough, some ADA “serial plaintiffs” withdraw their lawsuits at the last minute so as not to get an unfavorable outcome that will put the “shakedown” of businesses based on the ADA to an end. This exact consideration is likely at play in a similar area of “ADA tester” cases that the Supreme Court considered. While there are reasons to be hopeful, including judges who dismiss “manufactured” and “boilerplate” complaints from serial website plaintiffs for various reasons, including vagueness, and a ruling out of the Southern District of New York that the ADA does not apply to web-only business, the problem persists. Even where factually meritless ADA claims are made, and angry defendants pursue surly plaintiff’s counsel for attorney fees, the battle is uphill and, even in clear cases, may not succeed.
The surly nature of “drive-by” or sometimes referred to as “surf-by” ADA website lawsuits and the characters behind them are immensely frustrating and also damaging, but ignoring any lawsuit, regardless of the merits, is untenable as doing so can have devastating consequences, including by way of a default judgment. With that in mind, a common challenge that those on the receiving end of ADA accessibility lawsuits face is who to turn to to navigate and potentially fight the suit to success. They may be bombarded with solicitations by lawyers who reach out upon seeing a particular business is sued, claiming they can help. It is hard for a company to know who to trust because some lawyers purporting to defend business owners may be “chummy” with the serial plaintiff lawyers or act as a plaintiff’s counsel in other cases, leading to potentially more unfavorable outcomes.
An ADA Website Lawyer Who Understands The “Murky” Landscape
At RICHT, we are an ADA website compliance lawyer passionate about acting as a steady hand to help clients astutely navigate the confusing landscape of complaints by “opportunistic and vexatious ADA litigants” who allege the inaccessibility of a website. While we hope that in response to the growing calls for reform, the courts or lawmakers provide reprieve to businesses by providing much-needed clarity as to the application scope and compliance parameters of the ADA, until then, we will serve clients as trustworthy counsel in defending their businesses from ADA lawsuits. From general ADA website compliance aimed at minimizing the chances of an ADA lawsuit to insurance coverage analysis and ADA litigation strategy and defense to emerging areas such as how the ADA and accessibility interact with AI, we offer a full suite of services to help clients protect their businesses from ADA website compliance risk.
ADA Website Compliance & Lawsuit Defense Services We Offer
ADA WebAccessibility Compliance
ADA Litigation Strategy & Defense
ADA Insurance Coverage Review
ADA Website Compliance Resources
Examining New York Court Decisions on Website Accessibility Claims
In New York, federal courts have dismissed cases for failure to meet all elements of a Title III Americans with Disabilities Act (ADA) claim, specifically “that defendants own, lease, or operate a place of public accommodation,” and for lack of subject matter jurisdiction. New York State courts dismissed cases due to plaintiffs’ inability to prove all elements of a disparate impact or disparate treatment claim.
A Website Is Not a 'Place.' What Took So Long To Get This Right?
Two recent decisions holding that stand-alone websites are not places of public accommodation subject to the protections of Title III of the Americans with Disabilities Act have reopened a legal issue that many considered settled in the Southern District of New York. This potential trend provides hope for e-commerce businesses facing nuisance website accessibility lawsuits.
Lawsuits Multiply Amid Stalled Regulatory Process On ADA Website Access
Critics have long urged the Department of Justice to issue technical standards to ensure that websites are accessible to visually impaired users who employ screen reader software. But the agency has only issued guidelines that have been called vague and toothless as the number of Americans with Disabilities Act suits against website operators continues to climb.
Website Accessibility Lawsuits Rising Exponentially In 2023 According To Latest Data
According to a report authored by UsableNET – a New York-based accessibility solutions company, lawsuits against website owners alleged to have breached the Americans with Disabilities Act (ADA) have increased rapidly during the first half of 2023 across virtually every metric conceivable.
Supreme Court Dismisses Disability Activist’s Case as Moot
The activist, Deborah Laufer, had sued hundreds of hotels as a “tester,” having no intention of booking a stay, accusing them of inadequate disclosures about whether rooms were accessible.
US Supreme Court Mulls Limiting Disability Bias Lawsuits
U.S. Supreme Court justices on Wednesday raised concerns about lawsuits targeting hotels and other places of lodging for omitting details in their reservation systems about accessibility features for people with disabilities, but indicated they might opt not to decide the case.
