There were a total of 2,387 website accessibility lawsuits filed in the U.S. in 2022. And according to Accessibility.com’s 2022 report, this was a 1.5% increase from 2022’s total of 2,352 cases and a 14% increase over 2020 cases.
This may make many companies wonder what may have led to the increase. Here are some possible reasons.
1. Unclear rules and guidance
An important reason for the hike in cases was the ambiguous legislation surrounding it. There is the Americans with Disabilities Act (ADA), which prohibits discrimination because of disabilities.
And this law applies to businesses, facilities, websites, and mobile applications. According to Linda Sanabria, business owners are confused as the ADA doesn’t advocate specific accessibility standards.
In short, while the accessibility laws indicate what businesses should and shouldn’t do, there’s not much information about doing it. The question is how that can lead to increased rates if the laws have been around for some time.
2. Repercussions of the DOJ
The U.S. Department of Justice (DOJ) published some website accessibility guidelines in March 2022, leaving many businesses vulnerable to civil suits for poor actionable clarity.
For example, one point is that as long as they comply with ADA’s requirements, companies adhere to the ADA’s general conditions of non-discrimination and effective communication.
The word ‘flexibility’ confuses as, according to Locke Lord LLP’s post, standards depend on the interpretation and don’t clarify a defined safe harbor.
It’s because while flexible standards give businesses the freedom to reach accessibility, excessive freedom is risky to companies. They end up without any clear and focused course of action.
The increased lawsuits over the past few years justify their vulnerability.
3. Study of the two states which witnessed the most cases
Studying the two states that experienced maximum issues better explains the spike in lawsuits:
California has high-standard accessibility laws. Breaking down California’s Unruh Civil Rights Act (Unruh for short) and its ADA connection helps clarify things.
The Unruh protects all California businesses, including housing and public accommodations, from discrimination. The law tolerates no discrimination against citizens based on national origin, religion, sex, sexual orientation, race, age, or disability. Consequently, the ADA asserts that no qualified individuals with disabilities will be:
- Subjected to any form of discrimination by any entity
- Excluded from participation
- They are denied the benefits of services, programs, or activities because of their disability.
According to the law firm Rogers, Joseph, and O’Donnell, California courts apply the ADA and Unruh Civil Rights Act to all Web Accessibility Claims. So the ADA and Unruh determine all website accessibility civil cases.
Additionally, Rogers, Joseph, and O’Donnell state that in addition to available ADA remedies, the Unruh also allows for legal compensation amounting to $4,000 for each public accommodation denial, triple the general damages, or whatever is greater.
In short, Unruh allows for added compensation for plaintiffs in ADA-based suits, which with the DOJ’s guidance, provides increased opportunity and incentives for filing civil accessibility claims.
The increase in California and New York suits proves that many firms and plaintiffs file lawsuits under the new, inconclusive DOJ guidelines.
While New York doesn’t have any additional applicable website accessibility legislation, it does have multiple law firms specializing in ADA cases.
According to New York data, most law firms are ready to pick up ADA-based suits, legitimate or otherwise. The top three most aggressive firms of 2022 were from New York, each filing more lawsuits than the leading firm of 2021. Mizrahi Kroub LLP is one of the firms that filed most of the civil ADA cases in 2022. The firm and its partners are very litigious and famous for filing ADA-related class action suits.
According to Daily News, the firm filed over 400 accessibility lawsuits for 13 clients in 2018. The firm is also known for filing suits on dubious grounds, proven in their 2022 case, Weekes vs. The U.S. Tennis Association (USTA).
The defendant, in this case, made absurd claims of being unable to buy ‘eclectic’ merchandise from the USTA website due to accessibility issues. A motion filed dismissed the case as the USTA was not a merchandise retailer and because of the defendant’s shaky claims.
However, it doesn’t mean that bogus claims form the basis for digital accessibility lawsuits.
Mars Khaimov is another profile New York law firm representing plaintiffs in the high-profile Brown vs. Hello Fresh. This case had less shaky claims where the defendant alleged that Hello Fresh’s website was inaccessible to screen readers.
Businesses generally find themselves in a precariously legal position, and the rising number of suits justifies the risks they face by not ensuring accessible platforms.
As per the DOJ effects, accessibility legislation leaves businesses in the dark. However, while these legislations are ambiguous, companies should realize the substantial penalties they may face for not abiding by them.
Besides, this trend also offers opportunities for many law firms to be alert and ready to file ADA cases despite its nature.
The increase in lawsuits also shows why it is essential for businesses to have accessible websites. As the costs for inaccessibility are high, companies have to take extra measures to meet their website and app accessibility standards.
It means a business’s content must follow the Web Content Accessibility Guidelines (WCAG) for protection and ensure digital access to all customers.
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The ADA prohibits any private businesses that provide goods or services to the public, referred to as “public accommodations,” from discriminating against those with disabilities. Federal courts have ruled that the ADA includes websites in the definition of public accommodation. As such, websites must offer auxiliary aids and services to low-vision, hearing-impaired, and physically disabled persons, in the same way a business facility must offer wheelchair ramps, braille signage, and sign language interpreters, among other forms of assistance.
All websites must be properly coded for use by electronic screen readers that read aloud to sight-impaired users the visual elements of a webpage. Additionally, all live and pre-recorded audio content must have synchronous captioning for hearing-impaired users.
Websites must accommodate hundreds of keyboard combinations, such as Ctrl + P to print, that people with disabilities depend on to navigate the Internet.
Litigation continues to increase substantially. All business and governmental entities are potential targets for lawsuits and demand letters. Recent actions by the Department of Justice targeting businesses with inaccessible websites will likely create a dramatic increase of litigation risk.
Big box retailer Target Corp. was ordered to pay $6 million – plus $3.7 million more in legal costs – to settle a landmark class action suit brought by the National Federation of the Blind. Other recent defendants in these cases have included McDonald’s, Carnival Cruise Lines, Netflix, Harvard University, Foot Locker, and the National Basketball Association (NBA). Along with these large companies, thousands of small businesses have been subject to ADA website litigation.
Defendants in ADA lawsuits typically pay plaintiff's legal fees, their own legal fees for defending the litigation, and potential additional costs. In all, the average cost can range from tens of thousands of dollars, to above six figures. There are also high intangible costs, such as added stress, time and human capital, as well as reputational damage. Furthermore, if the remediation is incomplete, copycat suits and serial filers can follow, meaning double or triple the outlay. It's vital to implement a long-term strategy for ensuring your website is accessible and legally compliant.