Web accessibility litigation has been on a steady rise, with increased lawsuits filed across federal and state courts. Due to state court data reporting limitations, exact figures are challenging to pin down, yet there’s clear evidence pointing to a significant uptick in filings, particularly in states like California and New York. This trend underscores the growing importance of compliance with web accessibility standards. Demand letters and private settlement numbers are unknown but loom large because demand letters are usually a precursor to filing a lawsuit. This means digital accessibility claims are typically settled privately. In U.S. federal court, lawsuit claims are overwhelmingly ADA Title III claims. In the in-state court, claims are usually made using local anti-discrimination laws parallel to the ADA, such as the Unruh Act in California and the New York State / City Human Rights Law in New York. If you have received a demand letter or lawsuit, eSSENTIAL Accessibility can help. Many clients partner with eSSENTIAL after receiving a demand letter or lawsuit because we provide 1) technical expertise to make digital assets accessible and 2) legal support. Our legal support can be tremendous to your counsel because we can assess the veracity of the claims made and provide documentation for your counsel.
Web Accessibility Lawsuits in the U.S.
In 2024, according to research by Seyfarth Shaw, the total number of ADA Title III lawsuits nearly matched 2019 record numbers despite COVID-19, with 10,982 suits filed in federal court, down only 1% from 2021’s 11,053 lawsuits filed. The U.S. Court of Appeals for the Ninth Circuit ruling, which reversed a federal judge’s 2017 dismissal of a case against Domino’s Pizza, has kept Ninth Circuit courts (i.e., California) as a plaintiff-friendly jurisdiction. A blind man complained that he could not use Domino’s website or mobile app because neither was accessible. In 2021, the Eleventh Circuit ruled in the opposite direction in the Gil v. Winn-Dixie appeal, generally holding that a website’s Accessibility does not give rise to a potential violation of the ADA. While notable, this decision is not nearly impactful on the legal landscape because it happened in the 11th Circuit (Florida, Georgia, and Alabama) and not the Ninth (California) or Second (New York). Over the years, web accessibility lawsuits have also been filed under Section 508 of the Rehabilitation Act. Section 508 requires federal departments and agencies to ensure their use of ICT (information and communication technology) is accessible. Plaintiffs have taken legal action against 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.” Some plaintiffs are serial litigants, but others are genuine in their claims. For example, San Francisco’s LightHouse for the Blind and Visually Impaired filed a lawsuit against payroll processing and H.R. company ADP for lack of Accessibility on its website and mobile app. Regardless of who files the lawsuits, there is a real need for Accessibility in the digital world. Whether it’s software, documents, websites, mobile apps, or other mediums, if Accessibility is ignored, people with disabilities are negatively impacted. The impact can range from a suboptimal experience to outright being prevented or excluded from use.
How Have the Defendants Fared?
The Department of Justice (DOJ) is the governmental agency that regulates and enforces Title II and III of the ADA. The DOJ has made it clear that the department’s stance that ADA compliance requires web accessibility. Before the Trump administration took office, the DOJ was fairly active in web accessibility cases, entering into multiple settlements and consent decrees against private companies – and even filing statements of interest in private lawsuits. Here are some of the organizations the DOJ took action against:
- H.R. Block
- edX
- Peapod
- Miami University
- McLennan County
- Carnival Cruise Line
- National Museum of Crime and Punishment
- Quik Trip
In all these cases, WCAG 2.0, Level A.A. conformance has been mandated (in some instances, the conformance level was left out, but it’s very likely the DOJ meant A.A. conformance). 2017, the first web accessibility ADA lawsuit 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 couldn’t shop independently on the company’s website. The business violated the Unruh Civil Rights Act and had to remove the web barriers. In 2018, a woman who was blind sued the Whisper Restaurant and Lounge in Los Angeles because she couldn’t read the menu or make a reservation online. Although there have been only a handful of trial decisions on the merits, court rulings have overwhelmingly favored plaintiffs.
What Can We Expect Going Forward?
As we previously wrote, we do expect the DOJ under the Biden administration to resume digital accessibility activity. Moreover, we’re already reading more and more plaintiffs citing WCAG 2.1 AA (the current technical standard with more mobile considerations) rather than 2.0 AA (the standard published in 2008). At eSSENTIAL, we already recommend and implement WCAG 2.1 AA into our audits. Relatedly, we expect more litigation involving mobile apps and mobile web experiences. Although no formal federal prescription for digital Accessibility for private entities exists, U.S. authorities have said digital Accessibility is mandatory. 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. his 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.” Additionally, we expect DOJ regulation or an amendment to the ADA sometime before 2025. Organizations whose digital assets conform to WCAG 2.1 AA will greatly reduce their risk of digital accessibility litigation. Even better, people with disabilities who visit their websites will feel welcomed – and can interact online easily.
An Innovative Solution
eSSENTIAL Accessibility has developed a comprehensive accessibility solution to help organizations follow best practices for ADA compliance. If you haven’t already, your organization can start removing barriers with our interactive WCAG 2.1 checklist, available for download today. Schedule a demo or contact us to learn how we can help.
