ADA WEBSITE Litigation
Navigating the Challenges of ADA Website Litigation
As the digital world continues to expand, providing unprecedented opportunities for businesses and consumers alike, the EIA recognizes the critical importance of ensuring equal access for all individuals, including those with disabilities. This commitment aligns with the spirit and intent of the Americans with Disabilities Act (ADA), landmark legislation enacted to prohibit discrimination based on disability.
However, the application of the ADA for websites and mobile applications, has become a complex and often contentious issue. The Ecommerce Innovation Alliance is dedicated to helping our members in navigating the challenges of ADA website litigation. We advocate for policy solutions that create a more predictable and equitable environment for e-commerce innovation while upholding the principles of accessibility.
The Escalating Threat of ADA Website Lawsuits
The past decade has witnessed a dramatic surge in lawsuits alleging website inaccessibility under Title III of the Amercians with Disabilities Act (ADA). This environment can lead to significant financial burdens on businesses, particularly small businesses, which often opt to settle even questionable claims to avoid costly litigation.
We understand that innovation in the digital marketplace is paramount to your success. However, a significant and growing challenge for the e-commerce sector is the dramatic increase in litigation related to the ADA and website accessibility. The EIA is committed to keeping our members informed and advocating for practical solutions in this complex landscape.
The statistics paint a clear picture: ADA website litigation has surged in recent years. Between 2013 and 2021, there was a staggering 349 percent increase in ADA lawsuits filed nationwide. Notably, research indicates that the primary driver behind many of these lawsuits may NOT be to ensure accessibility for disabled patrons intending to use targeted businesses. But rather, the ADA’s provision for recovering attorney fees in successful private actions.
Research from the U.S. Chamber of Commerce’s Institute for Legal Reform highlights concerns about a “litigation cottage industry” exploiting the ADA. Some attorneys have been accused of actively seeking out businesses to sue. Instances of questionable allegations and “tester plaintiffs” who may not have a genuine intent to use a business’s services have been reported.
Key findings highlight the problematic nature of this ADA website litigation trend:
- High-Volume Plaintiffs: Over 80 percent of ADA cases are brought by plaintiffs who file at least eight lawsuits annually.
- Concentrated Filings: A small group of just 18 plaintiffs’ firms filed almost 45,000 ADA lawsuits nationwide between 2009 and 2021, representing 44 percent of all ADA case filings during that period.
- Geographic Hotspots: A significant portion of this litigation occurs in California, New York, and Florida. They account for nearly 75% of the total 103,172 ADA cases filed from January 2009 through April 2023.
- Questionable Practices: The most prolific filer, Potter Handy, faced investigations and an unfair competition lawsuit over claims of false allegations in their lawsuits. While the civil cases were dismissed due to “litigation privilege,” the Court of Appeals suggested that criminal charges or disciplinary hearings might be more appropriate recourse.
The Ambiguity of Applying Title III to Websites
The ADA was signed into law in 1990 and amended in 2008. Title III of the ADA prohibits discrimination on the basis of disability in “places of public accommodation”. These are defined as privately operated facilities affecting commerce and falling within one of twelve categories, including retail stores, restaurants, and entertainment venues.
A core issue fueling this litigation is the lack of explicit statutory guidance on whether Title III of the ADA applies to websites. While the ADA prohibits discrimination based on disability in “places of public accommodation”, it does not explicitly define websites, mobile applications, or other web-based technologies as such. Congress has also never formally amended the statute to address the digital realm.
The Department of Justice (DOJ) has the authority to issue regulations interpreting Title III. However, to date, the DOJ has never issued regulations formally extending Title III to websites operated by businesses considered places of public accommodation. While the DOJ has, at various times, encouraged voluntary website accessibility and made non-binding statements suggesting Title III should extend to websites, its stance has been inconsistent.
Key examples of the Department of Justice’s inconsistent and non-binding interpretations on the topic include:
- Early interpretations, such as a 2000 amicus brief, suggested that businesses operating solely online could be subject to the ADA.
- A 2010 Advance Notice of Proposed Rulemaking (ANPRM) indicated an intent to adopt website accessibility rules. However, this rulemaking process was formally withdrawn by the Trump administration during his first term in office, signaling a shift in approach.
- Despite the withdrawal, some courts have continued to reference the withdrawn ANPRM in their legal conclusions.
- More recently, the Biden administration issued guidance suggesting Title III requires website accessibility for public accommodations but did not adopt a specific technical standard for compliance, offering businesses “flexibility”.
Furthermore, federal circuit courts are divided on whether a website alone can be considered a “place of public accommodation” or if the definition is limited to physical spaces. Some courts require a “sufficient nexus” between the website and a physical location, while others have concluded that a physical location is not a prerequisite. The Eleventh Circuit Court of Appeals vacated a landmark ruling (Gil v. Winn-Dixie) that had required a website to conform to WCAG 2.0, further contributing to the lack of clarity.
The Impact on the Ecommerce Sector
The ambiguity surrounding the application of Title III to websites and the lack of clear, mandatory accessibility standards have created a challenging environment for ecommerce businesses. The surge in litigation poses a significant financial risk, particularly for small and medium-sized enterprises that may lack the resources for extensive legal battles or website overhauls.
Many businesses find themselves caught in a precarious position. They want to ensure accessibility for their customers with disabilities but lacking clear, consistent guidance on how to achieve compliance and avoid costly lawsuits. This uncertainty creates significant challenges for ecommerce businesses:
Increased Litigation Risk
The lack of clear rules and the conflicting court decisions leave ecommerce businesses vulnerable to costly lawsuits, even if they are making efforts to improve accessibility.
Unclear Compliance Standards
Without specific regulations, businesses lack a definitive roadmap for ensuring their websites are ADA compliant. The DOJ’s suggestion to look at WCAG standards provides some guidance but lacks the force of law.
“Shakedown” Lawsuits
Many businesses have reported receiving demands for quick settlements from law firms alleging website inaccessibility, often referencing cases like the initial Winn-Dixie ruling. These settlements can be substantial, even if the business is willing to make accessibility improvements.
Avenues for the EIA to Address ADA Website Litigation Issues
The Ecommerce Innovation Alliance believes that a more predictable and effective approach to ADA website accessibility is essential to foster both innovation in the digital marketplace and inclusivity for individuals with disabilities. We support exploring policy solutions that provide clarity for businesses while ensuring meaningful access for all users. Potential policy solutions that warrant consideration include:
We are actively exploring several avenues to address the challenges posed by ADA website litigation and provide support and clarity for our members. These may include:
Advocating for Regulatory Clarity
We can engage with the DOJ to encourage the initiation and completion of a rulemaking process that provides clear and practical guidelines for website accessibility under Title III of the ADA. This could involve advocating for specific policy solutions such as:
- Defining the Scope of Title III: Seeking clarity on whether Title III applies to all privately-operated websites, only those with a nexus to a physical presence, or other specific criteria.
- Establishing Clear Technical Standards: Urging the adoption of an accessibility standard, such as WCAG 2.0 AA, to provide businesses with a clear benchmark for compliance.
- Considering Small Business Impacts: Advocating for the DOJ to apply the “undue hardship” standard to create potential exceptions or tailored guidelines for small ecommerce businesses.
Supporting Legislative Solutions
While the passage of federal legislation on this issue has proven difficult, the EIA will continue to monitor and support potential bipartisan efforts aimed at providing clarity and addressing litigation abuses. This could include supporting legislation that requires plaintiffs to provide businesses with notice of alleged accessibility violations and a reasonable opportunity to address them before filing a lawsuit.
Further Reading
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