As 2023 kicks off, many organizations are taking stock of their progress in 2022 and setting priorities for the year ahead. If your team is still wondering whether digital accessibility belongs at the top of your list of 2023 goals, recent trends in litigation may factor into your decision. The number of web accessibility lawsuits that were brought to federal court citing Title III of the Americans with Disabilities Act (ADA) reached a new record in 2022, with plaintiffs filing 3,255 lawsuits—a 12 percent increase from 2021.
Because ADA demand letters typically precede, but don’t always lead to, lawsuits, the total volume of demand letters sent to organizations—coupled with state court filings for web accessibility—would likely indicate an even greater need for inclusive technology than these federal lawsuit numbers alone.
In this post, Chief Accessibility Officer Jonathan Avila takes a deep dive into the state of web accessibility case law in 2022, exploring key factors driving the upward trend in litigation as well as notable cases. Based on developments in 2022, he also shares his predictions for the web accessibility landscape in 2023 and outlines concrete actions organizations can take to mitigate their risk and create inclusive experiences.
Why is the number of web accessibility lawsuits on the rise?
The intensifying velocity of web accessibility litigation can be attributed to several factors. First, people with disabilities need access to usable online experiences, particularly as digital technology becomes more necessary and prolific in our day-to-day lives. Second, while the Web Content Accessibility Guidelines (WCAG) provide established benchmark standards for compliance, these have not been officially written into regulations supporting the ADA.
The absence of clear, defined regulations for web accessibility in places of public accommodation means specific expectations vary drastically across organizations and industries. To add to this confusion, different U.S. circuit courts interpret the ADA differently as it pertains to web accessibility, resulting in conflicting precedents. For example, while some courts maintain that an inaccessible website only violates the ADA if it has a “physical nexus”—meaning it’s tied to a physical location, like a brick-and-mortar office or store—others hold that the ADA applies to “internet-only” websites, like online-only retailers.
What major trends and decisions shaped web accessibility case law in 2022?
The legal landscape for web accessibility cases was as fraught as ever in 2022. A groundswell of litigation, including class action lawsuits against consumer brands, demonstrated that web accessibility remains a high priority for people with disabilities and their allies and an enticing environment for opportunists. Meanwhile, a controversial decision regarding retail giant Winn Dixie highlighted the confusion created by the absence of official web accessibility regulations. (Read more about this case below.)
Consumers hold brands accountable through class action settlements
Numerous high-profile consumer brands, including popular online wedding planning destination Zola and celebrity-led wellness giant Goop, faced class action lawsuits alleging that their websites were inaccessible to users who are blind or have low vision. Both the Zola and Goop cases were filed in New York federal courts, which saw the greatest volume of ADA Title III web accessibility cases of any state in 2022.
In a year marked by similar class action suits involving corporations across industries, from Barnes & Noble to Morgan Stanley, these cases demonstrate that today’s consumers know their rights—and won’t hesitate to hold organizations accountable when they perceive that an online experience isn’t accessible.
Court rules Winn Dixie case moot after six-year battle
In March, more than six years of litigation surrounding Winn-Dixie’s inaccessible website finally concluded when the Eleventh Circuit Court of Appeals denied the retailer’s request to revisit its previous dismissal of the case as moot.
Winn Dixie originally found itself in legal trouble in 2017, when a Florida federal trial court ruled that Winn Dixie’s website, which was inaccessible to the blind plaintiff, violated Title III of the ADA. This verdict was subsequently overturned in 2021 by the Eleventh Circuit Court of Appeals.
When the plaintiff filed a request that a panel of judges reconsider the ruling, the Eleventh Circuit deemed the entire case moot because the original injunction had expired while the appeal was pending. As a result of this decision, neither the Florida court’s judgment in favor of the plaintiff, nor the Eleventh Circuit’s appeal (in favor of the defendant), can be used as precedent for web accessibility lawsuits.
While Winn Dixie sought a revised decision, disability rights advocates weren’t happy either. In February, 181 advocacy groups wrote an open letter to the U.S. Department of Justice (DOJ) demanding the adoption of “enforceable online accessibility standards.” The retailer may not have had to meet the terms of the injunctive relief—but its reputation has nevertheless been mired by more than half a decade of legal drama that put its web accessibility barriers in the spotlight.
What new developments are on the horizon in 2023?
Our dependence on the internet isn’t going away, and neither is the need for equitable, accessible solutions for people with disabilities. Correspondingly, it’s likely that the high velocity of web accessibility lawsuits filed in 2022 will continue throughout 2023, particularly in specific areas of the country. Organizations can also anticipate changes to both how the ADA is enforced, and the types of online experiences that it will be applied to.
Web accessibility lawsuits may decline in California, but will continue to surge in New York
Although the total volume of web accessibility lawsuits in the U.S. is projected to rise, recent decisions by individual circuit courts will likely mean litigation shifts out of some states and into others.
In 2022, California’s State Court of Appeals indicated that internet-only businesses are not covered by the Unruh Civil Rights Act. Federal courts in the Ninth Circuit, which includes California, have similarly ruled that internet-only businesses are not covered by the ADA. This means that fewer web accessibility cases are likely to be filed in California, unless they pertain to businesses with a physical nexus.
The Ninth Circuit’s stance toward internet-only businesses has not been shared by other circuit courts, including the Second Circuit, which includes New York. The number of web accessibility cases filed citing the ADA has consistently increased in New York, and we expect this trend to continue.
Changes in regulations and laws could impact ADA Title III
The rising number of web accessibility lawsuits, coupled with U.S. circuit courts’ different interpretations of the ADA, emphasize the need for guidelines that are more clearly encoded by the government.
In May of 2022, the DOJ announced its intent to publish proposed regulations for the implementation of Title II of the ADA. These will include, among other things, web accessibility standards for public entities, like state and local governments. While these updates would take place under Title II rather than Title III, many people believe that Title II regulations are the precursor to similar regulations for Title III of the ADA. The proposed Title II regulations should be ready for review around April or May of this year, with a comment period until June.
Meanwhile, advocates continue to work with members of the U.S. Congress to build on current laws protecting the rights of people with disabilities. The Website and Software Application Accessibility Act, which was introduced in fall 2022 by Senator Tammy Duckworth and Representative John Sarbanes, promised even more readily enforceable digital accessibility regulations for entities covered by the ADA. While this bill did not become law in that congressional session, its likely reintroduction has the potential to resolve much of the confusion currently surrounding web accessibility expectations for organizations.
Accessibility will become a requirement for extended reality and self-service devices
In 2023, websites are hardly the only digital products that organizations make available to the public. As digital technology accelerates and diversifies, assets like mobile apps, video games, and virtual reality (VR) experiences may face closer legal scrutiny. In fact, several app and game stores have already received demand letters and lawsuits.
The presence of captioning in VR experiences is crucial for people who are deaf or hard of hearing to participate in the extended reality space. With the metaverse top of mind for many tech companies, organizations should know that any online retail space may be considered a public accommodation, whether consumers access it through a web browser, mobile device, or a VR headset.
Additionally, in September 2022, the US Access Board issued an advance notice of upcoming accessibility guidelines for self-service transaction machines, like self-checkout kiosks. These proposed guidelines are anticipated in 2023, and may be incorporated into future regulations that could be enforceable under the ADA.
How can organizations reduce their risk of web accessibility lawsuits?
The intensified litigation surrounding web accessibility over the past few years, and in 2022 particularly, has made it evident that compliance is a requirement for every organization. Without it, both public and private entities are at legal risk.
But it’s important to remember that the benefits of web accessibility extend beyond avoiding lawsuits. After all, accessibility isn’t just a legal mandate. It’s a key part of diversity, equity, and inclusion (DEI) initiatives. An accessible website can also help differentiate your organization from competitors by demonstrating a commitment to innovation and inclusion. What’s more? Accessible practices align with environmental, social, and governance (ESG) policies that increase investment and growth opportunities for your organization.
If you’re ready to take steps toward creating more inclusive online experiences, keep in mind that digital accessibility is an ongoing journey, not a quick fix. Becoming, and staying, legally compliant by conforming to WCAG can take time, and it’s wise to lean on a trusted partner like Level Access for support. No matter the industry or maturity of your program, our software and expert guidance will help you mitigate risk and improve the experience of all users.
Jonathan Avila (CPWA) is the Chief Accessibility Officer at Level Access. He has invested two decades in the digital accessibility field guiding organizations to create inclusive experiences that are usable to a wide range of people with disabilities. Through this work, he has supported accessibility across many different environments including web, mobile, documentation, extended reality, kiosk, and gaming, to empower people with disabilities to live their best lives. Jonathan is a member of the Accessibility Guidelines Working Group of the World Wide Web Consortium and the International Association of Accessibility Professionals. At Level Access, he focuses his time on testing methodology, thought leadership, and internal accessibility program policy to grow and sustain the company’s implementation of an inclusive workplace.
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