Lawsuits alleging that businesses have failed to make their websites accessible to individuals with disabilities have increased in recent years. Last year alone, there were more than 2,300 ADA website accessibility lawsuits filed––the overwhelming majority (1,660) were filed in New York, and most targeted consumer goods and retail businesses.1 If your business uses a website that is not accessible to individuals with disabilities, you run the risk of being targeted in one of these cases.
The Americans with Disabilities Act
The Americans with Disabilities Act (ADA) is a federal law passed in 1990 that prohibits discrimination against individuals with disabilities. Title III of the ADA governs private sector businesses (so-called “places of public accommodation” under the statute) and bans discrimination “on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations.”2
As an enforcement mechanism, the ADA permits individuals with disabilities to bring lawsuits against businesses directly. While the ADA does not permit the recovery of monetary damages in these situations, a prevailing plaintiff can seek injunctive relief (i.e., a court order that an offending website be changed), and reasonable attorney’s fees and costs.3 That said, many states, including New York and California, have enacted analogous state laws allowing individuals to recover monetary damages for disability discrimination,4 so plaintiffs frequently bring claims under the ADA and a relevant state law.
Historically, ADA lawsuits have addressed access barriers concerning physical spaces such as retail stores, bars, restaurants, wineries, galleries, and theaters. Yet, over the past decade, plaintiffs and their lawyers have switched gears and have sent demand letters or brought lawsuits against these same businesses alleging their websites violate the ADA because they are not equally accessible to individuals with visual- and/or hearing-based disabilities.
What the Courts are Saying
Generally speaking, on cases involving website accessibility, almost all New York courts have ruled that websites are places of public accommodation akin to brick-and-mortar establishments, and are subject to the ADA.5 That is so “irrespective of whether the website has a nexus to a brick-and-mortar commercial structure” or exists solely in cyberspace.6 Under this view, websites must comply with the ADA.7
However, perhaps growing tired of the onslaught of ADA website accessibility lawsuits, courts have started dismissing these cases on standing grounds. Courts have held that plaintiffs can only bring claims against businesses when the plaintiff attempts to use the offending-website as a customer,8 or if they intend to use the offending-website with some frequency.9 In March 2023, the Supreme Court agreed to hear a case that could considerably limit who has standing to bring ADA website accessibility lawsuits.10 But as a cautionary tale, winning on standing grounds does not mean a website does not violate the ADA––it only means that the person who filed the lawsuit is not the right plaintiff.
Department of Justice Guidance
The most recent guidance from the United States Department of Justice (DOJ), the agency responsible for regulating and enforcing the ADA, takes the same position as the majority of New York courts. In March 2022, the DOJ published its most recent guidance on the issue and stated “the ADA’s requirements apply to all the goods, services, privileges, or activities offered by public accommodations, including those offered on the web.”
The DOJ guidance allows businesses to “choose how they will ensure that the programs, services, and goods they provide online are accessible to people with disabilities.” So, while businesses have latitude to determine how their websites comply with the ADA, the DOJ takes the position that websites must be accessible to individuals with disabilities.
However, new regulations may soon be on the horizon. In August 2022, the DOJ announced its intent to “amend its Title II ADA regulation[s] to provide technical standards to assist public entities in complying with their existing obligations to make their websites accessible to individuals with disabilities.”12 While any rules to come out of this only affect Title II regulations (applying to state and local governments, and not private sector businesses), it is safe to assume a Notice of Proposed Rulemaking addressing Title III of the ADA is forthcoming and will closely mirror any new Title II regulations.
That said, exactly how authoritative any DOJ guidance will be remains to be seen, and the answer to this will hinge on the court’s determination of the overarching ADA issue.13 But, the DOJ guidance may provide plaintiffs with another arrow in their quiver.
The World Wide Web Consortium has published the Web Content Accessibility Guidelines (WCAG), which (while only advisory) have become the “gold standard” for making websites accessible to individuals with disabilities.14 Many federal courts have accepted these guidelines as the applicable standard for ADA website accessibility compliance, and many ADA website accessibility lawsuits are settled on the condition that the offending website become WCAG-compliant.15 The most recent guidelines, WCAG 2.1,16 are centered around making websites perceivable, operable, understandable, and robust.
Avoiding These Claims
Title III website accessibility claims and lawsuits against private sector businesses are not disappearing. To avoid becoming a target for these disputes, it is important to take the following steps:
- Proactively check your website and digital content to ensure it is accessible to individuals with disabilities.
- Ensure that your website complies with the latest WCAG guidelines (at the time of publication, WCAG 2.1) and includes a general statement regarding accessibility and a clear indication of how to contact your company if an issue with accessibility arises.
- If necessary, engage an outside vendor to bring your website into compliance with the latest WCAG guidelines, and any other applicable guidelines.
- If you receive an ADA demand letter or complaint, consult with counsel who understands the specific state and federal laws at issue and who can help you navigate your defense against such claims.
- 2022 Website Accessibility Lawsuit Recap: Data, Trends, Comparisons, accessibility.com, https://www.accessibility.com/complete-report-2022-website-accessibility-lawsuits [https://perma.cc/KC9X-ANCB].
- 42 U.S.C. § 12182(a).
- 42 U.S.C. § 12205; 28 C.F.R. § 36.505. A plaintiff is a “prevailing party” under the ADA when they receive either a judgment on the merits or a settlement. Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Hum. Res., 532 U.S. 598, 604 (2001).
- See N.Y. Exec. Law §§ 292 et seq. California and Florida have each passed comparable laws. See Cal. Civ. Code §§ 51 et seq. (California); Fla. Stat. §§760.01 et seq. (Florida). Even foreign companies operating in the United States are subject to the ADA. See, e.g., Spector v. Norwegian Cruise Line Ltd., 545 U.S. 119 (2005) (foreign-flagged cruise ships operating in United States waters are “places of public accommodation” under the ADA).
- Andrews v. Blick Art Materials, LLC, 268 F. Supp. 3d 381, 404 (E.D.N.Y. 2017)
- Monegro v. I-Blades, Inc., 2023 WL 2499718, at *4 (S.D.N.Y. Mar. 14, 2023).
- A pair of cases from the Eastern District of New York have gone the other way and called this view “at odds with [a] plain-text reading” of the ADA. Winegard v. Newsday LLC, 556 F. Supp. 3d 173, 180 (E.D.N.Y. 2021); Martinez v. MyLife.com, Inc., 2021 WL 5052745 (E.D.N.Y. Nov. 11, 2021). However, Winegard and Martinez represent a minority view in New York. Guerrero v. Ellusionist.com, Inc., 2023 WL 3847402, at *3 (S.D.N.Y. June 6, 2023) (discussing the split among New York courts).
- Harty v. W. Point Realty, Inc., 28 F.4th 435, 443 (2d Cir. 2022) (plaintiff lacks standing because he “does not allege anywhere in his complaint that he was using the [hotel’s] website to arrange for future travel”).
- Calcano v. Swarovski N. Am. Ltd., 36 F.4th 68, 77–78 (2d Cir. 2022) (plaintiffs lack standing to seek injunctive relief because they have no intention to return).
- Acheson Hotels, LLC v. Laufer, No. 22-429 (U.S.). For a discussion of the Acheson case, see Amy Howe, Court Takes Up Civil Rights “Tester” Case, SCOTUSblog, https://www.scotusblog.com/2023/03/court-takes-up-civil-rights-tester-case/ [https://perma.cc/32PY-KGYJ].
- Guidance on Web Accessibility and the ADA, U.S. Dep’t of Just., Civ. Rts. Div., https://www.ada.gov/resources/web-guidance/ [https://perma.cc/F2K8-Q8HS].
- Nondiscrimination on the Basis of Disability: Accessibility of Web Information and Services of State and Local Governments, Off. of Info. & Regul. Aff.: Off. of Mgmt. & Budget, https://www.reginfo.gov/public/do/eAgendaViewRule?RIN=1190-AA79&pubId=202204&utm_medium=email&utm_source=govdelivery [https://perma.cc/5848-NGY5].
- DOJ guidance will not be afforded Skidmore deference if the court finds the DOJ guidance to be inconsistent with the text of the ADA.
- Jason Tashea, For Law Firms on the Web, Online Accessibility for the Disabled Is Good Business, A.B.A. J., https://www.abajournal.com/lawscribbler/article/making-a-firms-website-accessible-for-the-disabled-makes-good-business-sense [https://perma.cc/X8C3-ETHZ].
- See, e.g., Sanchez v. Am. Heritage Textiles, LLC, No. 1:22-cv-4564, 2023 WL 2366950, at ¶ 14(a) (S.D.N.Y. Mar. 6, 2023) (settlement where one of the terms of the settlement was that the defendant would make the offending-website WCAG 2.1-compliant).
- W3C plans to publish WCAG 3.0 sometime in 2023 and has released working drafts of it, so businesses should start becoming familiar with these requirements.