This is post #11 in the ADA Compliance Series, which aims to outline a structure for validating and justifying a claim of “ADA compliance” for a website or other digital system. (a few notes and disclaimers on that)
At the time of this writing there have been over 5000 lawsuits filed in the field of digital accessibility. Current trends indicate we’ll see thousands of them getting filled every year for the foreseeable future. We also expect the complexity and scope of that litigation to increase and the majority of these lawsuits to be filed as class action lawsuits.
The lawsuits and all relevant actions pertaining to them, however, are matters of public record. As such, we don’t have to theorize on the claims in these lawsuits – we can simply review the lawsuits and cite the common items we see in them. In doing so we can start to narrow the scope of the claims we are concerned about to a finite set and put some bounds around the problem.
What are the lawsuits alleging?
Generally, the lawsuits are alleging some breach, on the part of the defendant, of their obligations under the ADA. In the context of the ADA, this typically means the defendant did something that is considered discrimination under the statute. The statute bans discrimination based on disability. Therefore, the defendant is in violation of their obligations under the ADA.
The claims are typically filled under the overall requirements of the ADA (42 USC 12181-12189) but certain sub-points are often cited the general or specific prohibitions of the ADA. Occasionally, the lawsuit will cite the related regulations, building standards or technical assistance manuals.
Often claims under related state laws are added to the lawsuit. This varies based on the state the lawsuit is filed on and the damages provided by the state. The typical model here is that the state law allows “tacking on” of damages under state law. The substance of these claims generally is aligned with the overall allegations of ADA non-compliance. The practical way the state laws play out, though, is varied. Again, an area where specialized counsel is helpful. The big state level laws that we see referenced:
- New York State Human Rights Laws (NYSHRL)
- New York State Civil Rights Law (NYSCRL)
- New York City Human Rights Law (NYCHRL)
- California’s Unruh Civil Rights Act (UCRA)
Those are the big ones. We’ll also see claims under other Federal civil rights statutes if the organization receives Federal funding – these are typically referenced under Section 504 which is part of the Rehabilitation Act.
What are the lawsuits asking for?
The three primary things these lawsuits are seeking is (i) injunctive relief, (ii) legal fee reimbursement and (iii) damages if applicable under the relevant state laws.
The key idea to keep in mind is that under the ADA, big picture, the lawsuits are seeking injunctive relief. Conceptually:
- The defendant is discriminating against people with disabilities.
- The discrimination is continuous and ongoing.
- The discrimination is a result of the policies, procedures and practices of the defendant not supporting full and equal access.
- Since the defendant has not changed its policies on its own to ensure accessibility – as indicated by the facts of the situation – the court needs to intervene to force the defendant to change.
That’s the basic idea behind injunctive relief and that’s fundamentally what the lawsuits are seeking.
The economic drivers for these lawsuits, though, principally comes from point (ii) – legal fee reimbursement. The ADA allows for attorneys to seek to recover legal fees for the prevailing party. There’s a lot of dense legal theory behind that one but that’s the basic idea. In practice, that gives plaintiff attorneys an incentive to file lawsuits when there is a reasonable likelihood of discriminatory behavior as their fees will be covered.
What else is in the lawsuits?
There’s a lot of work that goes into setting up the venue, standing, jurisdiction and the like – basically defining why this is a valid claim under the relevant laws. We’re going to ignore the majority of that as, for our purposes, it tends not to have implications for digital accessibility. There are exceptions to that, though, and that’s an area where specialized legal counsel can do a lot to help.
One item worthy of particular note and analysis is the concept of standing. In the area of digital accessibility, we have seen a number of cases – notably by serial plaintiffs – succeed in a motion to dismiss as the plaintiff didn’t sufficiently establish standing in the case. So, taking a look at standing in the early stages of litigation may be a profitable area.