Editor’s Note: This post was originally published in July 2018 and has since been updated for accuracy and comprehensiveness.
Just about every business has an online presence these days, however, not all are paying close enough attention to how people with disabilities experience their website. As of 2020, The Internet hosts more than 400 million active websites.1 Any of those websites that do business in the United States are legally required to provide equal accessibility to all people following Title III of the Americans with Disabilities Act.
To be ADA-compliant, these sites must be free of barriers that would make it difficult or impossible for people with disabilities to make use of them. An inaccessible website can grow into a major source of problems and missed opportunities for businesses.
A lack of accessibility compliance can lead to all sorts of other problems for your business. For example, your business can’t reach potential customers if those potential customers can’t use your website because of accessibility issues. It’s easy to underestimate the magnitude of people who rely on accessibility features to access websites. According to the Centers for Disease Control, approximately 61 million people, or a quarter of the adult American population, live with a disability.2 This group has an estimated $645 billion in annual disposable income. That’s too big of a market segment to ignore. Also, consider the potential customer reach via positive word-of-mouth your business gets by providing an accessible website.
Accessibility helps improve search engine performance. If your competition has an accessible website, but your organization does not, potential customers are more likely to see your competition ranked higher in search results.
Web Accessibility Lawsuits in the U.S.
All people have the right to equal treatment and shouldn’t experience discrimination because they happen to have a disability. Many laws in the U.S. support this right. If you violate one of these laws, then you can find yourself at the defensive end of a lawsuit.
In 2019, according to an analysis by international legal firm Seyfarth Shaw, ADA Title III lawsuits hit record numbers, with 11,053 suits filed in federal court, an 8.8% increase from 2018.3 California led the way with 4794 lawsuits, of which a significant number concerned web accessibility.
This number may have been contributed to by a ruling by the U.S. Court of Appeals for the Ninth Circuit which reversed a federal judge’s 2017 dismissal of a case against Domino’s Pizza. A man who is blind complained that he was unable to use Domino’s website or mobile app because neither was accessible. This reversal might have triggered more plaintiffs to launch web accessibility lawsuits in California.
Both California and New York also have their state laws banning discrimination. In California, it’s the Unruh Civil Rights Act; New York has a New York State Human Rights Law.
Over the years, people have filed web accessibility lawsuits over Section 508 of the Rehabilitation Act violations. Section 508 federal departments and agencies ensure ICT (information and communication technology) they use is accessible. People have taken legal action against both the Social Security Administration and the Department of Homeland Security over Section 508 violations.
Are These Lawsuits “Frivolous”?
You may have heard companies or politicians talk about ADA lawsuit “abuse” and “drive-by” litigation, or make claims that this kind of litigation is “frivolous.” Describing most ADA lawsuits as frivolous is inaccurate.
When 60 Minutes aired a segment on the issue in 2016, disability rights lawyer Lainey Feingold criticized it for being one-sided: “Anderson Cooper, the show’s host, did not mention a single ADA lawsuit he thought was valid, a single ADA lawyer he believed scrupulous. He did not interview a single disabled person whose ADA claim he found to be meritorious. No disabled activists were interviewed,” Feingold wrote.4 Many 60 Minutes viewers could have watched the segment and been left believing all ADA lawsuits are without merit.
It’s important to understand that web accessibility is anything but frivolous. Disabilities commonly affect the way people go online. Instead of typing on a keyboard, some individuals may use toggle switches or voice input. Instead of looking at images, they may only be able to read descriptive text on the page, using screen-reading software. Or they may need to magnify a web page before they can read it. Websites must use accessible design for these Internet use methods to work.
If you don’t have the disability-related experience, just think about how lost you’d be if you couldn’t quickly look up the arrival time of the next commuter train on your smartphone or consult the weather forecast as you’re headed out the door. Without web accessibility, millions of people with disabilities miss out on these simple conveniences.
As we noted in a previous post on ADA reform, the majority of ADA lawsuits are legitimate. The people with disabilities who filed these lawsuits experienced real digital barriers.
It’s important to note when plaintiffs file federal lawsuits under the ADA, they cannot sue for monetary damages. A plaintiff can only seek reimbursement of their legal fees as well as remediation of the inaccessibility in question. They aren’t launching litigation because they’re looking for some quick cash. The reason they sue is to compel a business that has violated federal law to change its discriminatory practices.
How Have the Defendants Fared?
The Department of Justice (DOJ) has made it clear that ADA compliance requires web accessibility.5 Many organizations lost cases over failing to be accessible.
- The court ordered tax-preparer H&R Block to improve the accessibility of its website and apps.
- The National Museum of Crime and Punishment in Washington, D.C. had to fix the inaccessible features on its website.
- Several communities have had to remove barriers from online employment postings (under Title II, state and local governments must also ensure equal access to their public services and information).
In all these cases the defendants have been told to follow the technical requirements of the WCAG 2.0, Level AA.
In 2017, the first web accessibility ADA lawsuit concerning went to a full federal trial. Juan Carlos Gil, who has a vision disability, sued supermarket chain Winn-Dixie because screen-readers wouldn’t work with their website and won.
In 2016 in California, Bag’n Baggage paid $4,000 in damages to a plaintiff who wasn’t able to shop independently on the company’s website. The business, which violated the Unruh Civil Rights Act, also had to remove the web barriers. In 2018, a woman who is blind sued the Whisper Restaurant and Lounge in Los Angeles because she couldn’t read the menu or make a reservation online.
What can we expect going forward?
Rulings and settlements typically point to WCAG 2.0, Level AA, as a universally accepted standard of web accessibility. Any company that is proactively striving for online accessibility should be complying with this standard.
In the fall of 2018, the assistant attorney general at the DOJ reaffirmed that the ADA covers websites when writing: “The Department first articulated its interpretation that the ADA applies to public accommodations’ websites over 20 years ago. This interpretation is consistent with the ADA’s title III requirement that the goods, services, privileges, or activities provided by places of public accommodation be equally accessible to people with disabilities.”6
Settlement agreements will likely continue to reference WCAG 2.0 Level AA and the WCAG 2.1 update. Since the new Section 508 requirements mirror the up-to-date requirements of WCAG, the expectations for accessibility under Section 508 now encompass more areas and more disabilities than they did previously.
Legal experts believe that as companies continue to ignore their obligation to ensure their websites and apps are accessible, there will continue to be more litigation.
Organizations that make an effort to comply with the technical requirements of WCAG 2.0 (or 2.1), Level AA, will, of course, protect themselves against this kind of legal action. Even better, people with disabilities who visit their websites will feel welcomed – and will be able to interact online with ease.
An Innovative Solution
eSSENTIAL Accessibility has developed a comprehensive accessibility solution to help organizations follow the WCAG guidelines to achieve and maintain ADA compliance. If you haven’t already, your organization can start removing barriers with our interactive WCAG 2.1 checklist available for download today.
- How Many Websites Are There? How Many Are Active in 2020? Hosting Tribunal, 2020
- CDC: 1 in 4 US adults live with a disability. CDC, 2018
- 2019 Was Another Record-Breaking year for Federal ADA Title III Lawsuits Seyfarth Shaw, 2019
- 60 Minutes Slams ADA, Boosts Trump Agenda Law Office of Lainey Feingold, 2016
- Enforcement Activities ADA.gov, 2018
- Office of the Assistant Attorney General Letter U.S. Department of Justice, October 2018