A Recap of 2018 ADA Web Accessibility Lawsuits and Primer on How to Avoid Them

UsableNet’s research team tracked all Americans with Disabilities Act (ADA) web accessibility-related lawsuits throughout 2018. The year saw a continued increase in the number of suits, which affected companies of all sizes in a wide range of industries across the globe.

There are two main reasons for the seemingly unending barrage of legal actions:

• Insufficient progress toward accessibility by industry, even as the disability community increasingly relies on the web for daily transactions
• Unclear government guidance from the Department of Justice (DOJ) under the Trump administration, which means companies that are already working on the problem may become targets

“Litigation thrives in the presence of uncertainty because uncertain outcomes increase risk and settlement value,” says Richard M. Hunt of Hunt Huey PLLC. “Since there is no prospect of regulatory certainty in the next several years the number of cases is only likely to increase.”

An Explosion of Lawsuits

ADA web accessibility lawsuits hit a record high in 2018 with 2,285 cases, a 181 percent increase over the 814 cases filed in 2017.

The vast majority of suits—96 percent—were brought in New York and Florida. New York led the pack with 1,471 suits, 64 percent of the total, with 123 cases filed per month. Florida was a close second with 726 suits, or 32 percent, and 61 cases per month. A mere 4 percent of all suits came outside of these two states.

These statistics indicate less about where the targeted companies are based and more about the location of the plaintiffs and their attorneys. If an organization conducts business in either of these states, they are open to legal action. The companies sued in these jurisdictions are distributed across the U.S., and 11 percent are based overseas in such far-flung countries as France, Italy, Japan, and Brazil.

Retail, Food Service, Travel Lead the Pack

Of the 16 industries listed in the report, the spotlight shined harshest on six, continuing a pattern seen in 2017:

• Retail (38 percent): ADA requirements in physical stores are, by and large, easy to understand, but the standards are less clear when it comes to online shopping.
• Food service (11 percent): While many restaurant websites provide only information (hours, location, menu), those that offer transactions, such as online ordering, have struggled to conform to WCAG guidelines. An important legal precedent in this industry recently came down from the Ninth Circuit Court of Appeals, which held that pizza giant Domino's website must comply with the ADA, after a blind customer filed suit in 2016.
• Travel/hospitality (10 percent): Major industry players, such as Airbnb, Expedia, and Booking.com, have taken major steps toward integrating accessibility into their platforms.
• Banking/financial (7 percent): Despite a 2017 declaration by the American Bankers Association that web accessibility was a “compliance issue to watch,” websites within the industry continue to struggle with implementation. There are a handful of notable exceptions, such as the Royal Bank of Canada.
• Entertainment/leisure (7 percent). Industry giants like AMC and Netflix have stepped forward as accessibility leaders.
• Self-service (4 percent). Whether in healthcare, government, or just your local ATM, self-service kiosks are gradually catching up with the accessibility movement.

For more on these industry trends, listen to UsableNet’s webinar ADA Web Accessibility Lawsuit Trends for 2019.

Lawyers Benefit on Both Sides

Although these lawsuits involve companies from across the country, the majority are handled by only a handful of law firms. Of the 600 firms involved in these cases, one-third of all defendants and three-quarters of plaintiffs are each represented by 10 firms, respectively. This will likely lead to a uniformity of settlements, as the same firms will meet one another regularly in court, with a set handful of judges hearing the cases.

Act Now, Avoid Legal Action Later

It sounds simplistic, but the best defense against a web accessibility lawsuit is to create an accessible site.

“Although regulatory uncertainty means the number of lawsuits will continue to rise,” says Richard M. Hunt, “a proactive effort to achieve real accessibility for disabled users remains the best way to avoid or defend website accessibility lawsuits.”

Evaluate your current level of accessibility, make a plan to conform to WCAG guidelines that includes user testing, and make sure you communicate and document your efforts. It’s never too early to start.