Accessibility lawsuits have been on the rise annually for years now. As we head into the 2024 year, it’s more important than ever before for businesses to make sure that they understand how accessibility law can impact their business and what they can do to protect themselves from digital accessibility lawsuits and make a positive impact on the accessibility of their digital properties.
So let’s talk about how we got here, where we think we’re going next, and steps you can take now to consider digital accessibility.
Editor's Note: This blog is based on our March 10, 2020 Webinar, featuring Chuck Marion, Partner at Blank Rome, and Jason Taylor, CIO at UsableNet. Register now and get a copy of the recording to watch on-demand as soon as it's released! Register to watch.
Here’s a quick recap of how we got here:
The image below is from our 2022 end-of-year lawsuit report and shows that ADA-based digital lawsuits have grown yearly since 2017. The 2023 lawsuit report has yet to be released, but preregistration to receive the report is open now. Pre-register now.
Since the last administration turnover, the DOJ has become more active with digital accessibility. We expect that this will continue.
In 2022, the DOJ's guidance determined that Title III of the ADA applies to all goods, services, privileges, and activities offered by public accommodations online. They addressed:
The 2022 guidance did not provide clear web accessibility guidance, such as a web accessibility standard businesses must achieve, like WCAG 2.1 AA, typically cited the most in ADA claims.
The DOJ also did not address if a physical nexus is required for plaintiffs to bring a web accessibility claim under the ADA.
Learn more about the history of the ADA, the rise in web accessibility lawsuits, and potential settlement costs in A Primer on ADA and Digital Accessibility- Download now.
The rise in ADA lawsuits around digital properties has raised awareness among businesses and lawmakers who want to offer relief for companies and more precise standards.
Several bills have been proposed to amend the ADA and clarify website accessibility requirements.
The Online Accessibility Act was introduced in the last Congress and reintroduced in this one, the act would:
Another bill proposed, The Websites and Software Applications Accessibility Act, would
A notable web accessibility law proposed at the state level is California's AB 1757, initially proposed in June 2023.
In August 2023, the bill's author requested that it be held in committee, but it will likely be considered and worked on further in 2024. AB 1757 would impose heightened standards on websites and mobile apps for accessibility.
If passed, AB 1757 could lead to even greater litigation and liability for businesses. It would:In 2023, Kansas passed the Kansas Act Against Abusive Website Access Litigation, this law does the following:
It’s also important to consider that there are international regulations to consider, including the European Accessibility Act and the Accessibility for Ontarians with Disabilities Act.
We've seen time and time again in our bi-annual reports that court decisions impact the volume and place where plaintiffs file ADA-based website accessibility lawsuits. Businesses must look to the court rulings in place of clear guidance from the DOJ or clarity from regulation.
What have the courts done to clarify web accessibility as we move into 2024?
Today, when we talk about web accessibility, we have to look at web accessibility lawsuits for guidance and to understand what customers with disabilities need from businesses for an accessible experience when they are online.
Most digital accessibility lawsuits are filed by blind or visually impaired plaintiffs who rely on screen readers. However, hearing-impaired plaintiffs bring some with a common complaint: a lack of closed captioning.
We are waiting on end-of-year ADA lawsuit numbers, but we can make a few predictions for 2024 based on midyear trends:
While ADA lawsuits are focused most heavily on the eCommerce industry, no company with an online presence is immune; if you are a one-person shop, you can still receive an ADA digital accessibility lawsuit.
Some lawsuits are brought as class actions, while others are individual plaintiffs, and many reference a lack of an accessibility statement. Some also make administrative claims.
And when it comes to case trajectories, there are common patterns:
For class actions, no disputed class certification motions have been decided yet. A few classes are certified for settlement purposes. This can have pros and cons.
Defendants should speak with an experienced defense attorney who can advise them on how to reply and a possible defense strategy like:
If your company receives a civil rights lawsuit for web accessibility or a demand letter, it's best to speak with an ADA attorney for advice on the next steps.
There are a few best practices you might consider to make your website more usable for people with disabilities as you plan your accessibility initiative for 2024.
Here are a few ideas to get you started:
Ready to increase digital accessibility and protect your business from increasing lawsuits? Learn about Usablenet’s accessibility services here.
Interested in learning more about our digital roadmap to accessibility and how to document each stage? Register to watch the webinar here
Please note: This blog is based on a December 6 Webinar by the same name. Attendees should consult with counsel before they take any action and should not consider these materials or discussions about these materials to be legal or other advice.