The first website was still a year away when Congress passed the Americans with Disabilities Act in 1990. In the years since, plaintiffs’ attorneys, sympathetic judges, and the Department of Justice have worked to create a new regime of ADA-based litigation and settlements that controls how businesses conduct themselves online. Recently, website-accessibility lawsuits and federal pressure have intensified, becoming a substantial threat to web-based companies.
The ADA requires that “public accommodations” be made accessible to the disabled, and it subjects businesses to lawsuits if they do not comply. The act says that public accommodations mean brick-and-mortar places like a “concert hall,” “bakery,” “laundromat,” or “motion picture house.” After the Internet arrived, however, some lawyers and judges claimed that the websites of these same businesses must be accessible to the disabled, too; later, they contended that even purely online businesses were public accommodations. Though it’s often unclear what accessibility means for websites—unlike in the physical world, where mandates for, say, wheelchair ramps are obvious—businesses have long faced lawsuits based on these vague standards, typically around making them available for the blind or, less frequently, the deaf.
The number of online-accessibility lawsuits has grown rapidly of late. In 2023, about 2,800 such suits clogged federal courts, near the all-time high, recorded the previous year, and up from just 814 in 2017. Despite lacking grounding in the law, these lawsuits have become one of the most important parts of the ADA: over a third of public accommodations suits now concern websites. Most get filed in New York, where judges have proved sympathetic.
Firms of all sizes find themselves in the crosshairs. Over 80 percent of the top 500 e-commerce websites have confronted a disability action in the last five years. But the ADA is an even bigger threat to smaller firms. About three-quarters of all website lawsuits are filed against companies with annual revenues under $25 million, and that proportion has risen in recent years.
The thousands of federal lawsuits represent only part of the impact of the website-accessibility campaign. Many other lawsuits are filed in state courts. Many attorneys don’t file suits at all but instead send “demand letters” threatening website operators if they don’t meet accessibility requirements. Attorneys request swift settlements from businesses, often with monetary payoffs.
The suits and threats are making some attorneys quite wealthy. The ADA has a strange structure: while the disabled plaintiffs don’t reap monetary rewards, the attorneys can recover their fees if they win. A few big law firms thus find “tester” plaintiffs to front for them across multiple cases, presumably in exchange for cash from the firm itself or from the special settlements that they can arrange. The top ten plaintiff firms filed over 80 percent of the federal website-accessibility lawsuits last year.
Beyond legal expenses, new accessibility standards can be burdensome for businesses to implement. Making websites accessible can range from a few thousand dollars up to $3 million per site, on some estimates. Determining how accessible a website can or should be, including how to translate particular colors, sounds, or feeds for the blind, involves complex issues of coding and of trade-offs that aren’t always obvious for businesses, let alone courts.
Though attorneys and sympathetic judges have driven the lawsuits, the federal bureaucracy has pushed the campaign, too. Since 1996, the Department of Justice has stated that the ADA mandates website accessibility. The DOJ has backed or joined many website lawsuits, including against H&R Block and Rite Aid, and even against purely online companies. Attorney General Merrick Garland’s DOJ recently declared website accessibility a “priority.”
Even plaintiffs’ advocates realize that the current situation, with a number of differing settlements based on conflicting lawsuits and court cases, is unsustainable. Advocates and some businesses have called for the DOJ to write specific regulations explaining what practices would free companies from litigation, but the agency refuses to say. In 2010, the department proposed clarifying regulations for website accessibility but, realizing their unworkability, sat on them for seven years before ending the effort. In 2022, in place of bright-line rules, the DOJ offered official guidance about how online businesses should operate. All it wound up clarifying was that online businesses should be on guard.
Many companies have sought to accommodate the blind, deaf, and disabled online, understanding that they make up an important part of their customer base. But subjecting businesses, many new and unversed in federal litigation, to vague lawsuits and onerous legal fees is not expanding access; it is deterring it. Judges with little knowledge of website design are forced to rule about specialized matters, and firms must navigate complicated and conflicting legal rules that they often don’t understand. The result is a less dynamic Internet for everyone.
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