There is no question that in today’s world, businesses rely on websites and mobile applications (“apps”) to reach consumers. Over the past several years, the number of accessibility lawsuits being brought against businesses with consumer-facing websites and applications has increased exponentially. While accessibility lawsuits are nothing new, inaccessible websites and mobile apps have more recently come under attack. Title III of the Americans with Disabilities Act (“ADA”) prohibits barriers of entry, and requires reasonable access to places of public accommodation to ensure full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations by persons with disabilities.[1] Websites, videos, mobile apps, and other digital content are now widely regarded as places of public accommodations and therefore must comply with Title III, even when a business operates exclusively on the web, with no physical storefront.
The current Biden administration is also moving the ball forward on digital accessibility, with the Department of Justice (“DOJ”) publishing a Notice of Proposed Rulemaking (“NPRM”) on digital accessibility earlier this month. Now is a great time to audit your digital presence to ensure that your business is accessible to all consumers.
The Department of Justice is Taking Action
When President Biden took office, he vowed that his administration would aggressively enforce existing civil rights laws for people with disabilities, including the ADA. The DOJ is acting on that promise.
Last year, on March 18, 2022, the DOJ released long-awaited guidance, which confirmed that digital accessibility is a priority for the DOJ. Hinckley Allen previously covered the DOJ’s March 2022 guidance in our April 4, 2022 article, New DOJ Guidance Confirms That Website Accessibility is Mandatory for all Public Accommodations. The guidance emphasizes that businesses, as well as state and local government websites, are places of public accommodation under the ADA, and the importance of ensuring that websites are accessible to individuals with disabilities.
On August 4, 2023, the DOJ published a highly-anticipated NPRM on digital accessibility. As Attorney General Merrick B. Garland stated, the NPRM is “the first time in the history of the Americans with Disabilities Act that the Justice Department has issued a proposed rule on website accessibility.” The NPRM proposes adding specific requirements about web and mobile app accessibility for state and local governments. Although this rule would apply only to state and local governments under Title II, it signals the direction the DOJ is heading towards under the ADA.
The NPRM would adopt the World Wide Web Consortium’s Web Content Accessibility Guidelines (WCAG) Version 2.1, Level AA as the technical standards that state and local governments need to follow. These standards for web content accessibility are promulgated by the international online community, and are frequently relied upon by courts, plaintiffs, and businesses as a metric for assessing web accessibility. The proposed rule would also apply to mobile apps that state or local governments make available to the public or use to offer services, programs, and activities to citizens, such as mobile parking apps.
The DOJ believes that the WCAG 2.1, Level AA technical standards are appropriate because they “provide web accessibility to individuals with disabilities—including those with visual, auditory, physical, speech, cognitive, and neurological disabilities—and yet [are] feasible for public entities’ web developers to implement.” These standards would give state and local governments, as well as courts and litigants, concrete benchmarks to determine what is specifically required for accessibility. Moreover, since Level AA conformance is already widely used, web developers and governments should be familiar with its requirements.
In order to offset the burden of conforming to the standards, the Department has proposed staggering the compliance dates for public entities according to their total population. In addition, several exceptions have been proposed, which would allow certain digital content to be exempt from the technical standards, such as archived content. Finally, the state and local governments would not need to take any action that is considered an undue burden, since the ADA only requires reasonable access to places of public accommodation.
Businesses will likely be the next step for further DOJ regulations. Over 13 years ago, on July 26, 2010, the DOJ announced that the Department was considering revising the regulations implementing Titles II and III to establish specific requirements about website accessibility for state and local government entities and businesses operating places of public accommodations. After receiving approximately 400 public comments, the DOJ decided to pursue separate rulemakings addressing digital accessibility under Titles II and III. Now that this NPRM under Title II has been published, we can expect separate regulations to be proposed for Title III, which applies to places of public accommodation.
The comment period on the NPRM is currently open, with comments due by October 3, 2023. Regardless of whether this rule gets adopted, the DOJ’s recent actions signal that ensuring digital accessibility and enforcing the ADA remains a priority of the current administration.
Private Enforcement Lawsuits Have Also Expanded
The DOJ is not alone in enforcing the ADA. The ADA also empowers private citizens to bring lawsuits to enforce the ADA, and individuals are doing so in unprecedented numbers.
ADA accessibility lawsuits allege that the websites and other digital content fail to provide access to people with visual, auditory or other disabilities in violation of Title III of the ADA. Organizations should ensure their websites are accessible to avoid potential litigation and risk.
According to a mid-year report authored by UsableNET, a New York based accessibility company, last year, 4,035 accessibility lawsuits were filed in New York and California alone. It is projected that another 4,220 lawsuits will be filed in 2023. According to the report, e-Commerce websites are especially prone to accessibility litigation, as they are the targets of 84% of the lawsuits, followed by food service (7%) and education (2%). However, no industry is exempt, as Title III applies to all places of public accommodation, and no company is too small. As UsableNet reports, more accessibility lawsuits are being filed against smaller businesses than ever before.
Plaintiffs who prevail in an ADA lawsuit are entitled to injunctive relief and attorneys’ fees, which can make resolution of such cases costly.[2] Moreover, in many states, including New York, accessibility plaintiffs may also bring claims under parallel state human rights laws and collect compensatory damages if they prevail. On the regulatory side, businesses that violate Title III may face civil statutory penalties of up to $75,000 for the first violation, and up to $150,000 for any subsequent violations.
Oftentimes, these lawsuits are brought as proposed class actions, which can be costly to defend. According to the 12th annual Class Action Survey by Carlton Fields, companies spent a record $3.5 billion on class action defense in 2022. The primary drivers? Larger claims and more companies facing actions.
Many accessibility class action suits are brought by “tester plaintiffs,” which are individuals who file suit but typically have no intention of visiting the business – or in digital accessibility cases, using the website or mobile application – but rather are suing to ensure overall accessibility compliance. On October 4, 2023, the United States Supreme Court will hear argument in Acheson Hotels v. Laufer, a case which will determine whether such tester plaintiffs in accessibility cases have standing to sue.[3] The United States Court of Appeals for the Second Circuit, which has jurisdiction over federal lawsuits in New York and Connecticut, recently took up the standing issue in Calcano v. Swarovski.[4] There, the Second Circuit rejected the “carbon-copy complaints” that were being filed in its jurisdiction, and re-emphasized that plaintiffs must allege “a real and immediate threat of future injury” to get the injunctive relief provided for by the ADA.
Fortunately, with proper website and digital maintenance, litigation and penalties may be avoidable. Congress and the DOJ have not yet provided standards that businesses must comply with, leaving courts to set the standard.[5] Many courts expect businesses’ digital content to comply with the WCAG, and, as discussed above, the DOJ may soon require states and local governments to do the same. It is important for every business to take proactive measures to ensure that its digital content is accessible to individuals with visual, auditory or other disabilities.
Prioritize Accessible Content
The bottom line is this: accessible content is critical to the success of your business. Make accessibility a priority. Ensure your digital content functions with a screen reader or other assistive reading device. Consider offering video and audio alternatives to meet the needs of visitors with visual, auditory and other physical challenges. Draft an accessibility policy and publish a copy on your business’s website and mobile app. Create a user support hotline that enables users to contact you to report any accessibility barriers they come across. Finally, commit to continued accessibility by conducting periodic effectiveness audits and staying on top of trends and new technologies to optimize the user experience. Hinckley Allen attorneys can help you navigate digital accessibility, and work with you to determine the best methods for achieving accessibility for your business.
If you have concerns about website compliance, or are faced with one of these lawsuits, contact Hinckley Allen’s Labor & Employment or Litigation Practice Group members. Our attorneys understand accessibility standards and will assist you in identifying and remediating challenges along the way.
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[1] See 42 U.S.C.A. § 12182.
[2] See 42 U.S.C. § 12205.
[3] Acheson Hotels, LLC, v. Laufer, No. 22-429 (cert. granted Mar. 27, 2023) was brought to challenge a hotel’s failure to provide information about its accessibility for people with disabilities on its website.
[4] Calcano v. Swarovski N. Am. Ltd., No. 20-1442, 20-1559, 20-1588, 20-1594, 20-1608 (June 2, 2022) reviewed five cases that were brought against several businesses for failing to offer braille gift cards.
[5] In fact, a bipartisan bill that was introduced in October 2020 and would have required substantial compliance with Web Content Accessibility Guidelines (“WCAG”) 2.0 A, AA, failed to pass during the 116th Congress. The bill, which would have required plaintiffs to exhaust administrative remedies with the DOJ before commencing a lawsuit and plead “with particularity each element of the plaintiff’s claim, including the specific barriers to access,” faced opposition from disability rights advocates who argued that standards already exist and the bill would have limited plaintiffs’ rights.