What to expect as we head into a new year
2020 was a year like no other, but one thing remained the same: ADA website accessibility lawsuits continued to stream in, targeting companies of all sizes in a gamut of industries.
The overwhelming majority of suits were filed by users with vision impairments, alleging websites are inaccessible with screen reader technology. A small number of suits were filed by deaf users due to lack of closed captioning on video content, and a handful by users with mobility impairments, including multiple sclerosis.
The vast majority of suits are filed in California and New York as they have plaintiff friendly precedents and state laws that provide for more damages, though this doesn’t mean California and NY-based companies are most at risk. Lawsuits filed in these states can and do target companies headquartered across the US. Essentially, if you have a website, you’re open to liability, no matter where you’re located.
Top targets were no surprise – retail and ecommerce companies bore the brunt of suits, with runners up including food & beverage companies, education, and financial services institutions.
What’s in store for ADA website accessibility lawsuits in 2021? To provide some perspective, we reviewed data compiled from suits filed in the last 3 months of 2020 and highlighted emerging trends we believe will likely continue into the new year.
Mobile App Lawsuits
Lawsuits that specifically target mobile apps and mobile websites are subtly trending upwards, showing that establishing an accessible desktop website alone is not enough – you must carry your efforts across all your digital assets.
The most common complaints made in mobile app suits include:
- App not compatible with Apple’s VoiceOver screen reader technology (cited in every suit)
- Images missing alt text
- Missing navigation links
- Missing labels
- Inaccessible drop-down menus
- Touch target too small
How to Protect Your Business: Be sure all of your digital properties conform with WCAG 2.1 AA standards. Compared to WCAG 2.0, which is the standard that many global anti-discrimination laws (ADA, AODA, etc.) cite, WCAG 2.1 includes a number of mobile/app specific success criteria that will ensure all your digital assets are more accessible and mobile-friendly.
Also of note: WCAG 2.2 is expected to be released Spring/Summer 2021and will likely include a few success criteria specific to mobile devices such as smartphones and tablets.
Subscribe to our blog to receive the latest WCAG updates directly in your inbox.
Class Action Lawsuits
The number of ADA lawsuits filed as Class Action suits are skyrocketing. Based on the lawsuits we were able to access, in October, 77% of suits filed were class action suits, November 75%, and December a whopping 91%.
Class action lawsuits are brought by one or a few named plaintiffs that represent a larger group of people against a defendant.
While it’s highly unlikely that any single digital accessibility lawsuit goes to trial, the potential downside of a class action going to trial for a defendant is real. The cost of defending a class action is high both in terms of time and money. Losing a class action case could also mean significant damages and attorney’s fees.
The effect of class actions is notable because it makes defending against a claim even less desirable. Thus, plaintiffs’ law firms hope that adding the class action component to a lawsuit will prompt quicker and higher settlement agreements.
An important caveat to add is plaintiffs’ lawyers also face significant hurdles in certifying a class action (a court must certify a class before a case can proceed as a class action). Hurdles include:
- Adding a sufficient number of members to the class
- Showing that common questions with common answers exist
- Claims of the class representatives will represent the entire class
Many more items are needed but the important takeaway is most plaintiffs’ lawyers don’t want to get involved in the uphill battle of a class action. Rather, they would prefer to quickly settle.
We’re also seeing an uptick in lawsuits referencing a plaintiff’s unsuccessful attempts to locate an “Accessibility Notice” on a defendant’s website. The suits claim this then renders them unable to locate contact information provided for disabled individuals to use for questions, concerns, or to obtain assistance with communications.
In some cases where companies do have an accessibility notice, it’s the lack of accessibility that comes under fire. For example, the following is an excerpt from Ariza v. SPARC Group LLC, filed in October:
“Plaintiff attempted to locate an “accessibility” notice, statement, or policy on the Website that would direct him to a web page with contact information for disabled individuals who have questions or concerns about, or who are having difficulties communicating with, the Website. Although the Website appeared to have an “accessibility” notice displayed, that “accessibility” notice still could not be effectively accessed by, and continued to be a barrier to, visually disabled persons, including Plaintiff. Plaintiff was unable to receive any meaningful or prompt assistance through the “accessibility” notice to enable him to quickly, fully and effectively navigate the Website, as non-visually disabled persons can do. The fact that Plaintiff could not communicate with or within the Website left him feeling excluded, as he is unable to participate in the same online computer shopping experience, with access to the merchandise, sales, discounts, and promotions as provided at the Website and for use in the physical stores, as the non-visually disabled public.”
How to Protect Your Business: If you don’t have an accessibility notice, post one, and be sure the page itself is accessible.
Highlight your company’s commitment to digital accessibility, include the accessibility standard (e.g. WCAG 2.1) you’re dedicated to conforming with, and provide a means of contacting support if anyone needs assistance using your website. Learn more about writing an effective accessibility statement here.
Roll of the Dice
While reviewing our data, another interesting trend emerged. Each month, certain industries seemed to be a favorite target of law firms who are frequent filers. In October, it was potato chip companies, November, vitamin and supplement suppliers, and December, hunting apparel and equipment, along with musical instrument retailers.
Perhaps it’s completely coincidental, but it almost appears as if firms file suit against one business, then look for similar companies/close competitors and file additional claims. Knowing which industry will end up in the hot seat month-to-month is anyone’s guess, but one thing is certain: becoming fully accessible and compliant is your best defense against this type of frivolous litigation.
When you receive an ADA lawsuit, it’s natural to want to take care of the issue quickly, but it’s important to note, there are no shortcuts to achieving digital accessibility. Don’t be fooled by vendors who try to tell you otherwise – quick-fix approaches do absolutely nothing to mitigate legal risk.
Achieving digital accessibility compliance the right way takes time, but a reputable company will streamline the process. Our comprehensive web accessibility-as-a-service platform provides the technology and technical expertise you need to mitigate legal risk and deliver accessible experiences that are ADA compliant much faster.