My name is Kris Rivenburgh. I’m an attorney and the author of The ADA Book. I’m also the founder of Accessible.org.
So that I can efficiently provide a transcript and closed captions, I will read from the transcript itself.
When it comes to ADA compliance and digital accessibility, it’s important to keep in mind there are two different parts to the legal landscape.
One is the Department of Justice’s stance that website accessibility is a requirement under Title III of the Americans with Disabilities Act (ADA). Title III requires the “full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.” The DOJ’s stance is compelling because the DOJ is the federal agency charged with the regulation and enforcement of the ADA.
However, the DOJ has not set out definitive regulations on how to make websites, mobile apps, and other digital offerings accessible. Rather, in a March 18, 2022 post titled, Guidance on Web Accessibility and the ADA, the DOJ reiterated that owners of public accommodations have flexibility in how they comply.
“Businesses and state and local governments have flexibility in how they comply with the ADA’s general requirements of nondiscrimination and effective communication. But they must comply with the ADA’s requirements.”
And the DOJ has followed through on this stance, initiating private enforcement actions concerning digital accessibility against several organizations. Settlements have resulted from these actions, including a handful of settlements against grocery stores in late 2021 and 2022.
So what this means is that, basically, the unofficial but formal legal position from the agency that regulates and enforces Title III of the ADA is that Title III does include digital offerings like websites.
The second part of the legal landscape is private litigation. Plaintiffs’ law firms have abused the legal system by filing website accessibility claims en masse under the ADA and other civil rights laws that prohibit discrimination against people with disabilities including the California Unruh Act and the New York State and City Human Rights Laws.
The flood of private litigation is problematic for a number of reasons, but one important reason is the asymmetry that exists between a plaintiff’s law firm and a defendant. Sending a demand letter or filing a complaint in court is a relatively small cost to plaintiffs’ law firms because they already have an infrastructure in place for doing so.
However, the cost of defense is much higher for recipients of litigation.
And, thus, settlements almost always result from private litigation.
Because of this, plaintiffs’ law firms have practically dictated what is necessary to be ADA compliant. And these law firms almost invariably reference the Web Content Accessibility Guidelines (WCAG) technical standards and generate claims based on instances where websites may not be conformant with specific success criteria under WCAG.
The most common claim involves missing or insufficient alternative text for images.
What’s important to know is that the most active law firms in this space are not typically weighing how a website’s content or components could potentially provide access, but rather looking for technical instances of non-conformance with WCAG. And I have yet to come across an instance where a plaintiff’s law firm provided a grace period for the website owner to remediate the named issues.
Recent Legal Updates
Several important updates to the legal landscape have occurred in 2022.
- First, the DOJ issued guidance for web accessibility. Although it didn’t change substantively change anything, the very release was notable in and of itself.
- Second, the U.S. Court of Appeals for the Second Circuit (New York is in the 2nd circuit) held that a plaintiff has to show “concrete” and “particularized” harm has resulted from visiting an allegedly inaccessible website. The effect will be that plaintiffs will have to put in much more effort to establish standing. This will dramatically reduce the number of complaints filed as New York and California are by far the two most litigious states in terms of website accessibility.
- Third, the California Court of Appeals ruled that websites by themselves are not public accommodations under the ADA which means that online-only businesses cannot be successfully sued in California state or federal court under California law. Note that websites connected to a physical location are still susceptible.
- Fourth, the DOJ has announced that it intends to enact website accessibility regulations for state and local governments. State and local governments are regulated under Title II of the ADA. This regulation appears to be fast-tracked and could go into effect in 2024. This is significant because any Title II regulation framework will very likely be applied to the public sector.
- And fifth, law enforcement officials have taken action against two serial plaintiffs’ firms in California. One lawyer who was notorious for sending demand letters has been charged by the San Francisco District Attorney’s Office with 14 counts of grand theft by false pretense. Another law firm engaged in serial litigation has had a civil lawsuit brought against it by the Los Angeles and San Francisco District Attorneys.
These updates are definitely a needed balance to the onslaught of litigation that has taken place in the last five years and the number of filings has bore this out. All data shows a significant decrease in court filings.
I think we will continue to see a drop in not only formal complaints, but demand letters. The abusive litigation that we have seen in recent years will be tempered by the aforementioned 2022 updates.
However, this does not mean website accessibility litigation will come to a standstill. Some plaintiffs’ lawyers will adapt their methodology, and keep in mind that there are instances where legitimate complaints are filed because of a true barrier to access.
Furthermore, regulation on digital accessibility is imminent. With the DOJ initiating regulation for Title II, you can expect Title III regulation to follow in rapid succession.
I do think most website owners are now less likely to receive a demand letter or have a complaint filed against them as of Fall 2022.
However, I still highly recommend addressing the accessibility of your website and/or other digital assets. Here is why:
- It enables people to effectively access and engage with your offering, there are numerous benefits – including improved user experience and your profit – simply in embracing accessibility because it’s a societal good
- New York Title III filings have remained strong despite the March ruling
- Litigation remains steady in other states such as Florida and Pennsylvania
- Websites can be accessed from any state which means you are potentially liable for your digital offering in any state
- Regulation is coming in the near future
Also, anecdotally, I recently talked to an attorney from a prominent New York law firm and he said that litigation has not slowed down on his end.
To be sure, recent updates highly favor website owners and I predict we will continue to see a decline in litigation for the next 1-2 years. However, it will not come to a halt.
I’ve already explained that we don’t have a formal federal prescription for exactly how to make our digital offerings compliant with the ADA. However, through the DOJ’s private enforcement actions, we do have an extremely good idea of what the ceiling for material compliance is.
In its settlements, the DOJ has continually mandated three things:
- WCAG conformance
- Accessibility notice
- Methods to get support or provide feedback
Older settlements mandated WCAG 2.0 AA conformance, but recent settlements have stipulated the present version, 2.1.
And accessibility notice along with support and feedback essentially amount to having an accessibility statement with multiple means of contact.
Note that this doesn’t mean perfectly meeting all three bullet points is necessary for compliance.
For example, if you only provide assistance through email, it doesn’t mean you are currently non-compliant.
Or, if you don’t fully conform to WCAG 2.1 AA, it doesn’t mean you are currently non-compliant.
But, it is a great idea to strive towards checking off these three bullet points as best you can. If you do, you can be confident that you are following best practices for ADA compliance.
And that’s it for this video.
Credit to Seyfarth Shaw’s ADATitleIII.com blog for providing excellent information on recent filings and rulings that I carried forward in the legal updates.
If you would like help with an audit or remediation, you can find out more about accessibility services at Accessible.org.
Furthermore, I highly recommend you read The ADA Book. The ADA Book is quick and to the point and helps everyone understand the legal landscape and the different elements in play when making a website or other asset accessible.
Links to both resources and my contact information are provided below.