ADA Website Litigation Continues to Proliferate in 2021
U.S. companies have been inundated with lawsuits in the past several years alleging that their websites do not comply with the Americans with Disabilities Act (ADA) and various state laws, including the California Unruh Act. Plaintiffs claim that the websites do not meet the Web Content Accessibility Guidelines (WCAG) created by the nonprofit World Wide Web Consortium because visually impaired consumers allegedly cannot access the sites using screen-reader software. While it is difficult to determine with precision the number of cases that have been filed, they have increased 75 percent from just over 2,000 reported cases in 2018 to approximately 3,500 in 2020 – and the numbers are steadily rising. The cases target all manner of business across a wide range of industries.
The vast majority of the cases have been filed in specific venues, particularly the U.S. District Court for the Southern District of New York and in various California state courts, where case law in those jurisdictions has made the successful defense of cases difficult, except in limited circumstances. Some courts have held that websites qualify as “public accommodations” under Title III of the ADA even when a business does not have a physical location that provides a “nexus” to the website. Further complicating matters, the U.S. Congress has not yet passed legislation that would provide more clarity to businesses regarding any official standards for compliance. Similarly, the U.S. Department of Justice has been unsuccessful in promulgating regulations.
The cost of litigating these cases typically far exceeds the relatively modest amounts that plaintiffs’ attorneys seek through quick settlements. In part, settlement amounts often are relatively small because the ADA permits only injunctive relief and recovery of attorneys’ fees for the prevailing party rather than monetary damages. Some state laws, however, including the California Unruh Act, do provide for statutory damages.
Further, since plaintiffs plead injunctive relief in their complaints, they may seek, as part of the settlement, remediation of the website to certain WCAG standards. Outside vendors provide audit, remediation, and monitoring services that may be helpful when resolving a suit. Based on the complexity of the website, number of unique pages, and frequency of updates, remediation costs can multiply quickly. Plaintiffs’ attorneys often also use software designed to identify very minor, technical WCAG “compliance” issues following a prior settlement even though these issues have little bearing on whether a visually-impaired customer can use the website.
These suits are frustrating to businesses, to be sure. Many companies may simply be unaware of ADA compliance requirements for their retail websites, leading them to be caught unaware by these lawsuits. The existence of these suits presents an opportunity for a company to update its website to be more accommodating to the visually impaired customer, while potentially reducing future exposure to these suits.
Companies need to work with trusted law firms and advisors to reduce potential future exposure and drive down settlement costs. In addition, companies need to identify reputable vendors who can document a company’s audit and remediation efforts and provide detailed compliance letters to increase bargaining power in hope of reducing settlements in any future suits.