- Web accessibility ADA lawsuits are likely to keep pace or even increase in 2022.
- The DOJ has renewed its efforts in enforcing Title III of the ADA and maintains that the law applies to digital properties such as websites.
- 2022 activity may set the groundwork for increased legal clarity on web accessibility requirements.
Though we don’t have access to the official totals just yet, 2021 appeared to be another record-breaking year in the number of federal lawsuits citing Title III of the Americans with Disabilities Act (ADA), including those related to digital accessibility. It was also a year that saw renewed attention from the U.S. Department of Justice (DOJ) in private enforcement actions over inaccessible websites.
Usually, the best way to predict what lies ahead is to review what’s already happened. To that end, here are three key digital accessibility legal headlines from 2021, accompanied by our related predictions for 2022.
DOJ resumes enforcing web accessibility
In late 2021, the DOJ reaffirmed its stance that Title III of the ADA applies to websites with two settlements concerning vaccine websites. What made these cases stand out, in comparison to enforcement actions in years past, is that in them, the DOJ required conformance with version 2.1 AA of the Web Content Accessibility Guidelines (WCAG), as opposed to the older WCAG 2.0 AA. This signals that conformance with version 2.1 AA is now the best practice for ADA compliance.
Expect heavy DOJ involvement in Title III enforcement in 2022, with a potential continued focus on the accessibility of COVID-19-related digital experiences. This could involve statements of interest (SOI) filed by the DOJ in private cases. SOIs explain the DOJ’s position to courts, in order to represent the interests of the United States in litigation happening between private parties. SOIs filed by the DOJ in Title III lawsuits tend to be highly persuasive because Title III is the DOJ’s domain of expertise.
Landmark cases demonstrate a split in circuit courts
Gil vs. Winn-Dixie
In a highly talked-about and complicated web accessibility legal case, the Court of Appeals for the Eleventh Circuit overturned a Florida district court’s decision that grocery retailer Winn-Dixie had violated the ADA by having an inaccessible website. The Court reasoned that website barriers did not prevent the plaintiff from accessing goods and services at a retailer location. This was an important decision because it indicated that the Eleventh Circuit Court of Appeals believed websites are not places of public accommodation subject to the ADA in and of themselves.
In the most recent ruling in the case, the Eleventh Circuit dismissed an appeal as moot because by the time the Court issued a decision on it, Winn-Dixie’s website was already accessible. The Court vacated its prior decision, and remanded the case to the district court to dismiss as moot, but Winn-Dixie has filed a petition to reverse this latest decision. That’s because a dismissal based on mootness would invalidate the precedent the Eleventh Circuit had set in Winn-Dixie’s favor.
Robles v. Domino’s Pizza
After five years, 2021 finally delivered a ruling in the highly publicized Domino’s Pizza case.
The Ninth Circuit Court, which includes California, ruled that websites that have a nexus to a physical place of public accommodation, such as a restaurant, are covered by the ADA, whereas web-only businesses are not covered. As a reminder, this ruling would apply to future federal cases, not state cases. No definitive decision has yet been made with regards to the accessibility requirements for Domino’s Pizza’s mobile app.
The decisions in the Winn-Dixie and Domino’s cases indicate a notable split in the Circuit Courts over the applicability of the ADA to websites and other digital experiences. This increases the likelihood that the Supreme Court may review the matter of digital accessibility in 2022.
National Association of the Deaf brings suit against major podcast platforms
At the end of 2021, The National Association of the Deaf (NAD) and Disability Rights Advocates (DRA), a non-profit disability rights legal center, filed a lawsuit against SiriusXM (including its Pandora and Stitcher brands) for failing to provide captions or transcripts for any podcasts. The NAD claims the failures to provide transcripts equate to a violation of the ADA as well as state and local New York law because they prohibit deaf and hard-of-hearing individuals from equal access to a wide variety of podcast content. The organizations’ joint press release about the filing specifically points out podcasts produced by Marvel Entertainment as high-profile content, which is exclusive to Sirius XM, that the Deaf and hard of hearing community is being excluded from enjoying.
As this case progresses, podcast transcription will continue to become an area of more significant accessibility focus and awareness. And we’re confident that more digital accessibility lawsuits will arise in 2022 over the inaccessibility of other forms of media beyond websites, such as podcasts, mobile apps, software platforms, etc.
The year ahead
What will be in 2022’s “year in review” web accessibility legal roundup? Only time can tell for sure. But, as the year advances, here are some trends and events we’ll be keeping a pulse on:
- The Online Accessibility Act: This bill failed to pass in Congress in the 116th session, which ended in January 2021, but it was reintroduced in February and referred to committee. The bill would add a Title VI to the ADA that would prohibit discrimination against individuals with disabilities by any private owner or operator of a customer-facing website or mobile app. Legal observers have noted it’s still unlikely the act would pass without significant support from disability rights organizations, but we will be watching for any advancement it might receive.
- Release of WCAG version 2.2: The latest update to the WCAG standards has been anticipated for some time now, and the W3C’s Web Accessibility Initiative (WAI) has shared that the update is scheduled to be completed and published by June 2022. We will be watching to see if and how the DOJ and/or plaintiff’s law firms begin to make reference to these updated guidelines in legal action once they are released.
- Expansion of plaintiff’s law firms: We also expect the pool of plaintiff’s law firms active on digital accessibility to increase in 2022 as we’ve witnessed more and more firms engage in litigation in this space in recent years.
According to Seyfarth Shaw LLP, “It’s going to be a busy year for businesses on the ADA Title III front. Businesses are well-advised to review their current accessibility policies, procedures, practices, and training programs to ensure compliance with the ADA and equivalent state laws.”
That’s where we come in.
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