Litigation focused on website accessibility continues to develop as consumers increasingly become more dependent on access to online services. As previously noted, we saw an increase in website accessibility litigation under the Americans with Disabilities Act (ADA) in 2018 after the U.S. Department of Justice (DOJ) placed its accessibility rulemakings under Title II (local and state governments) and Title III (places of public accommodations) of the ADA on indefinite hold on the DOJ’s list of “inactive actions” in 2017.
Since then, additional factors resulted in the continued growth of accessibility lawsuits and demands. First, the global pandemic has heightened consumers’ reliance on digital services providing, among other things, food, essential goods and services, medical resources, and information. Since state and local “stay at home” orders were entered beginning in March 2020, federal website accessibility cases initially dropped but quickly rebounded to 2019 rates, according to a recent report by UsableNet. (The statistics cited in this alert derive from UsableNet’s Midyear 2020 ADA Website and App Accessibility Lawsuit Report.) In 2020, the retail industry has predictably continued to dominate the website accessibility domain, making up nearly 76% of all federal court filings. The food industry is second, making up 12% of all federal court filings.
Second, in October 2019, the U.S. Supreme Court denied Domino’s Pizza, LLC’s petition for certiorari seeking review of the Ninth Circuit’s ruling that Domino’s website and mobile app must comply with the ADA to make online services fully accessible to the visually impaired. Since that denial, 20% of all federal ADA digital accessible cases now claim businesses’ mobile apps are also inaccessible. This increase is likely driven by the increased use of mobile devices and the Ninth Circuit’s inclusion of mobile apps in its ruling.
Website accessibility demands are also becoming more varied as plaintiffs begin to rely on authority outside the ADA to support their claims. For example, California now has the most cases filed of any state as lawsuits are being filed in both federal court and California state court, with plaintiffs relying on the Unruh Civil Rights Act and the ADA. Demands against online real estate companies and mortgage lenders have also alleged violations of the Fair Housing Act (FHA), claiming that websites fail to make real-estate transactions equally and fully available to individuals with disabilities.
In response, on October 1, 2020, Congressmen Lou Correa (D-CA) and Ted Budd (R-NC) introduced the bipartisan Online Accessibility Act (H.R. 8478), which aims to provide guidance to help businesses ensure their websites are compliant with the ADA while setting limitations on the right of individuals to bring accessibility lawsuits without first exhausting all available administrative remedies. Rep. Correa acknowledged that, “[l]ast year, over 2,000 website accessibility lawsuits were filed by plaintiffs alleging that certain websites were not ADA complaint.” He stated that if the bill is passed, “job-creators will be able to avoid costly lawsuits and be given a roadmap for how to help their disabled customers access online content.”
The bill proposes to “amend the Americans with Disabilities Act of 1990 to include consumer facing websites and mobile applications owned or operated by a private entity, to establish web accessibility compliance standard for such websites and mobile applications, and for other purposes.”
Under the Online Accessibility Act, businesses will be considered compliant if their website or mobile application is in substantial compliance with the Web Content Accessibility Guidelines (WCAG) 2.0 Level A and Level AA standard established by the Accessibility Guideline Working Group, or any update, revision, or replacement published by the World Wide Web Consortium, an international organization that develops the WCAG technical standards.
Under the proposed Online Accessibility Act (Act), an individual may not bring an action to enforce the Act until all administrative remedies have been exhausted. The individual must first notify the operator of the website that the website is not in compliance. If, after 90 days of receipt of notice, the owner fails to bring the website into compliance, the individual may then file a complaint with the DOJ. Once the Attorney General (AG) receives a complaint of an alleged violation, the AG must complete an investigation within 180 days to determine whether a violation exists. The AG will then make a final determination as to whether a violation exists.
The AG also has a “duty to investigate” under the Act, and shall “undertake periodic review of compliance of consumer facing websites and mobile applications.” If the AG has reasonable cause to believe that any person is engaged in a pattern of discrimination or any person has been discriminated against and such discrimination “raises an issue of general public importance,” the AG may commence a civil action in “any appropriate United States district court.” The court may grant equitable relief, order monetary damages (not including punitive damages), and assess a civil penalty not exceeding $20,000 for a first violation, or $50,000 for any subsequent violation.
Only upon exhausting all administrative remedies may an individual commence a civil action against the owner or operator of a non-compliant website, unless the AG has already instituted an enforcement action. This would be the “sole and exclusive remedy for any person aggrieved by the failure of any consumer facing website or mobile application” to be compliant.
While the ADA currently does not mandate any particular technical standard for website accessibility, the WCAG has become the de facto international standard for web accessibility and its compliance has been required by a number of courts when evaluating accessibility. WCAG 2.0 was released in 2008, and WCAG 2.1 became the official W3C recommendation 10 years later in 2018. In 2020, over 75% of all federal claims reference WCAG 2.1 AA, which adds 12 additional criteria above the prior 2.0 AA standard.
Barriers to digital access continue to be a source of litigation as reliance on online services increases. Until the DOJ issues regulations or official guidance, public accommodations are advised to adopt an appropriate WCAG technical standard, review and remediate the accessibility of their websites, and stay informed of the legal issues and practical considerations involved in managing legal risk in this evolving area of litigation.
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