Since 2017, plaintiffs have brought roughly 10,000 digital accessibility lawsuits against businesses and governments under Titles II and III of the Americans with Disabilities Act (ADA) and other statutes. The causes of action vary, but most claims target defendants whose websites or other digital assets are allegedly built in a way that fails to integrate with the assistive technologies that people with disabilities use to understand web content such as pictures, text, and video. Few cases ever proceed to litigation; the majority settle privately and require the defendant to
address the allegedly problematic conditions
within 12-36 months.
The pace and volume of digital accessibility litigation remained robust in the first half of 2021, as the world began to emerge from COVID-19 and many businesses resumed their pre-pandemic operations. This article outlines four digital accessibility developments from the first six months of this year that will continue to shape the business landscape for private and public companies, non-profits, and government entities that have public websites.
1. Gil v. Winn-Dixie, 993 F.3d 1266
(11th Cir. 2021)
In April, a three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit reversed a landmark 2017 district court ruling in favor of the plaintiff that found that websites may be places of public accommodation under the ADA. In the aftermath, that reversal has curbed the number of filings by plaintiffs in the Eleventh Circuit, which includes Alabama, Georgia, and Florida. Shortly after the panel issued its opinion, however, the plaintiff petitioned for en banc review, potentially throwing the case back into limbo.
Should the appellate court grant en banc review and vacate the panel’s decision, businesses in the Eleventh Circuit may expect the rate of digital inaccessibility complaints to increase.
2. New Guidance from the W3C
In January, the World Wide Web Consortium (W3C), the private body that issues international web standards, released a working draft of the Web Content Accessibility Guidelines (WCAG) version 3.0. The WCAG is intended to provide a wide range of recommendations for making web content more accessible to users with disabilities. While the new standards likely will not take effect until 2023, business owners and website developers should begin planning now by visiting https://www.w3.org/TR/wcag-3.0/ to familiarize themselves with the proposed changes. Chief among these recommendations is a new scoring system that will make the evaluation of a given site’s accessibility easier and more nuanced. WCAG 3.0 will focus not on “success criteria,” as WCAG 2.0 does, but on outcomes that are measured holistically and based on functional needs. The working draft will surely evolve further before its release, since the W3C solicits ongoing feedback from members. Nevertheless, we should anticipate that the WCAG 3.0 will help clarify the confusion that practitioners may feel about the current evaluation system.
3. Expected Increase in Follow-on Suits
An estimated 25 percent of digital inaccessibility complaints filed in federal court this year have been against defendants who were previously sued under Title III of the ADA. These claims are often brought by a new plaintiff and target the same websites that were at issue in prior lawsuits. But increasingly, it is other types of digital assets—mobile applications, mobile-responsive websites, streaming platforms, embedded videos—that are the focus of this new litigation. Businesses with an online presence are wise to consider the appeals court’s 2018 holding in
Haynes v. Hooters of America, 893 F.3d 781 (11th Cir. 2018), that the settlement of one plaintiff’s claims for relief does not moot those of a second plaintiff.
4. Software-Based “Solutions” in the Crosshairs
Hundreds of companies may have learned in 2021 that the low-cost widget and overlay products now widely available online neither prevent litigation nor meaningfully improve digital accessibility. Roughly 10 percent of lawsuits filed this year have been against companies whose overlays were already active when the plaintiff visited the site. As a group of over 500 leading accessibility voices worldwide attest on www.overlayfactsheet.com: “No overlay product on the market can cause a website to become fully compliant with any existing accessibility standard and therefore cannot eliminate legal risk.” Additionally, as the National Federation for the Blind reports, there is particular concern that some overlay providers are actually “harmful to the advancement of blind people in society.” The NFB has since distanced itself from these companies (https://nfb.org/about-us/press-room/national-convention-sponsorship-statement-regarding-accessibe). Given the dissent by leading advocacy groups, businesses should instead promote a compliance strategy that fixes the underlying source code of digital assets and builds accessibility into the design and development of websites and apps, rather than rely on these “quick fixes” that may make things worse. In addition to fixing the underlying source code, rather than relying on widgets and overlay products, business owners, web developers, compliance managers, legal counsel and other stakeholders can provide an equitable and inclusive user experience, while minimizing legal exposure by:
a. Shifting from a discrete, reactive view of digital accessibility to one that is continuous, proactive, and dynamic. Businesses should maintain accessibility policies and procedures that include regular testing of existing assets, as well as IT and marketing practices that build ADA compliance into the development lifecycle.
b. Incorporating people with wide-ranging disabilities—visual, auditory, mobility, cognitive—into the auditing process. Their feedback, based on a wide set of testing tools, software, and methods, is central to an egalitarian and satisfying user experience.
c. Seeing digital accessibility in light of the good will it creates among users. Investing in true usability, not just in band-aid measures, may generate positivity in the disability community, widely estimated to exceed 1.5 billion people worldwide. While this translates into higher profitability for businesses, the return on that investment may surpass the mere increased purchasing power of an often-disenfranchised part of the population. It also carries with it the promise of a more equitable global future, in which more people have greater access to the goods and services they need.