Digital Accessibility Lawsuits in 2019: A Year in Review

Accessibility Consultant | Brooklyn, NY

2019 was another banner year for lawsuits filed under the Americans with Disabilities Act (ADA) Title III alleging discrimination on the basis of digital accessibility. Suits filed under Title III of the ADA typically claim that companies discriminate against users with disabilities by not making their websites, mobile apps and other digital assets accessible.

Following the trends from recent years, the number of suits filed continued to grow, as companies and users with disabilities continued to seek clarity around website accessibility regulations and requirements. A major ruling in the courts provided a breath of relief for disability advocates but little additional clarity, and the Department of Justice (DOJ) offered no additional guidance on the subject.

Looking at The Numbers

According to Seyfarth Shaw, 2019 saw an estimated 11,000+ ADA lawsuits filed, 2408 of which were related to digital accessibility. Both are the highest recorded numbers in history. While this represents only a modest increase over 2018’s figures (2258 digital accessibility suits filed), the bump is significant, as the momentum continues to grow and pressure is maintained on companies to make their digital assets accessible.

Breaking down the lawsuits geographically, we continue to see the largest concentration of suits filed in New York, Florida and California. By industry, the breakdown of ADA digital accessibility lawsuits remained similar to previous years. Retail and travel & hospitality were the largest targets (60% and 24% respectively), with Self Service, Real Estate, Healthcare and Banking rounding out the list.

The Domino Effect

In June 2019, the first major ADA Title III digital accessibility lawsuit made its way to the United States Supreme Court. Domino’s Pizza filed a Writ of Certiorari with the court, essentially asking it to consider and reverse the decision of a lower court (9th Circuit of Appeals) that stated the plaintiff had a right to file his claim under the ADA. Although the Supreme Court ultimately denied the appeal by refusing to take the case, which provided little additional clarity around digital ADA regulation, the decision reverberated in the legal space. As everyone awaited the decision by the Supreme Court in Robles v. Domino’s in the late Summer, the number of lawsuits filed appeared to decrease. Many were speculating that a decision to take the case by the Supreme Court might clarify legal regulation of websites as public accommodations and render many active lawsuits null.

Regulatory Action

In 2010, the DOJ issued an Advance Notice of Proposed Rulemaking (ANPRM) stating that the Department planned to address digital accessibility requirements within the context of the ADA. Then in 2013, the Department of Transportation (DOT) amended the Air Carrier Access Act (ACAA) to enforce website accessibility standards (WCAG 2 Level AA) on US bound or based airlines. The regulatory tides appeared to be turning.

When the new administration came into office after the 2016 election, DOJ officials re-prioritized the Department’s cases and decided to table the 2010 ANPRM regarding digital accessibility and the ADA. This was a major blow to both accessibility advocates and companies seeking legal accessibility guidance, and in 2018, over 100 members of the United States Congress queried Attorney General Jeff Sessions to clarify how the ADA applied to websites. The Department responded stating that the DOJ interpreted the ADA to apply to public accommodations’ websites for over 20 years, but that in the absence of specific regulation, businesses did not have to adhere to any specific accessibility standard to comply with the ADA.

Closing Argument

The legal landscape surrounding digital accessibility in the United States continued to shift in 2019, but ultimately, we are not much closer to regulatory clarity than we were a year ago. Suits continued to be filed at a record-breaking clip, the courts continued passing the buck of responsibility for landmark decision-making, and the Department of Justice and Congress completely punted the issue.

Everyone is seeking answers to the question: “Do companies have a legal responsibility to make their websites, apps and other digital content accessible for people with disabilities?” We know the answer is a resounding yes, and we hope you agree.

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