This is a guest blog by Jessica Youngs from Octans Legal. Jessica is the founding and principal attorney of the Firm and has more than 15 years of experience in the law. Full disclosure: Jessica is general counsel for Monsido - an Optimere brand.
The number of lawsuits filed against companies for violating the Americans with Disabilities Act’s (ADA) / Rehabilitation Act’s web accessibility requirements continues to hold constant in the United States, with a total of 2,352 lawsuits filed in 2021.
Of these, as projected, small-to-midsized e-commerce companies were involved in the vast majority of litigation (74% of filed cases) due to their large, multi-state reach, volume of pages, and frequent utilization of non-compliant third-party widgets and components. The trend to targeting small, new businesses continued as many online retailers were first established during the COVID-19 pandemic and have yet to build out more robust accessibility programs.
In addition, the year concluded with now more than 400 of the Internet Top 500 websites having been met with an ADA website accessibility claim. This demonstrates that larger companies as well continue to be targeted by claims, sometimes facing repeat claims for non-compliance:
Much anticipated, but ultimately left open in 2021, was clarification at the Supreme Court level regarding the applicability of ADA Title III’s reach to businesses’ websites. This declination to weigh in left open the circuit split that developed in 2021 amongst the 11th Circuit (Ala., Fla., Ga.); 9th Circuit (Cal., Alaska, Ariz., Hawaii, Guam); and 3rd Circuit (Penn., Dela., NJ, VI); & 6th Circuit (Ky., MIch., Ohio, Tenn.) Instead, we received a strong statement from the Department of Justice (DOJ) stating the Biden Administration’s formal opinion that ADA Title III does apply to private websites.
Regulations, Rules, & Guidance to Consider
Of these, as projected, small-to-midsized e-commerce companies were involved in the vast majority of litigation (74% of filed cases) due to their large, multi-state reach, volume of pages, and frequent utilization of non-compliant third-party widgets and components. The trend to targeting small, new businesses continued as many online retailers were first established during the COVID-19 pandemic and have yet to build out more robust accessibility programs.
In addition, the year concluded with now more than 400 of the Internet Top 500 websites having been met with an ADA website accessibility claim. This demonstrates that larger companies as well continue to be targeted by claims, sometimes facing repeat claims for non-compliance:
Much anticipated, but ultimately left open in 2021, was clarification at the Supreme Court level regarding the applicability of ADA Title III’s reach to businesses’ websites. This declination to weigh in left open the circuit split that developed in 2021 amongst the 11th Circuit (Ala., Fla., Ga.); 9th Circuit (Cal., Alaska, Ariz., Hawaii, Guam); and 3rd Circuit (Penn., Dela., NJ, VI); & 6th Circuit (Ky., MIch., Ohio, Tenn.) Instead, we received a strong statement from the Department of Justice (DOJ) stating the Biden Administration’s formal opinion that ADA Title III does apply to private websites.
Regulations, Rules, & Guidance to Consider
- Americans with Disabilities Act of 1990 (prohibits discrimination on the “basis of disability in the activities of public accommodations”
- ADA Title III - businesses (no size requirement)
- ADA Title II - state and local governments
- Section 3-4 and Section 508 of the Rehabilitation Act of 1973
- State laws (e.g. California’s Unruh Act)
- WCAG 2.0/2.1 AA and A
Disabilities Come in Many Forms
Website accessibility continues to focus on making websites more easily navigable for disabled individuals who use the Internet in different ways. The three most common causes for claims are against websites who are inaccessible to disabled visitors with the following needs:
- Screen Readers: Devices that speak the text on screen to an individual who is sight-impaired
- Captioning: Text that puts into words sounds in music, videos, and sound files for individuals who are hearing impaired
- Voice Recognition Software: Speech-activated tools for website browsing movements, such as those traditionally made by a mouse, for movement-impaired individuals
Recent High-Profile Settlements
The DOJ settled several high-profile website accessibility ADA Title III cases with private businesses toward the end of 2021 and thus far in 2022, signaling its position that it will actively pursue these matters in the future under Title III (See more in this article Section: The DOJ Chimes in on Title III.) This is aligned with its stated anti-disability discrimination agenda for 2021 and looking toward the future. All cases (Hy-Vee, Meijer, Kroger, and Rite-Aid) involved the businesses’ vaccine scheduling portals, which the DOJ claimed were inaccessible to disabled users who encountered, among other issues, “(1) images, buttons, and form fields that were unlabeled or had inaccurate alternative text or labels and (2) pop-up windows, error messages, and drop-down menus that were not reported to screen readers.” These failures prevented users from obtaining knowledge about the COVID-19 vaccines and/or scheduling a shot. As a result, the websites violated Title III of the ADA per the DOJ. All cases were settled under non-monetary, out-of-court agreements between the U.S. government and the business.
The DOJ continues to enter into other non-monetary settlement agreements with state and federal agencies under Title II, including with Miami University; Nuces, Texas; and Louisiana Tech. Many of these settlements are tracked by Project Civic Access.
The DOJ continues to enter into other non-monetary settlement agreements with state and federal agencies under Title II, including with Miami University; Nuces, Texas; and Louisiana Tech. Many of these settlements are tracked by Project Civic Access.
The DOJ Chimes In on Title III
Following its successful settlements and remediation plan outlines with vaccine portal sites, in March 2022, the DOJ issued the Biden administration’s first official stance on website accessibility for businesses open to the public under ADA Title III. The DOJ offered this together with further guidance on how state and local governments (ADA Title II) can ensure web site accessibility under the DOJ Civil Rights Division Disability Rights Section’s initiatives.
For the first time, the DOJ made clear its stance that ADA Title III should be read to require private businesses have accessible websites, stating:
For the first time, the DOJ made clear its stance that ADA Title III should be read to require private businesses have accessible websites, stating:
An inaccessible website can exclude people just as much as steps at an entrance to a physical location. Ensuring web accessibility for people with disabilities is a priority for the Department of Justice. In recent years, a multitude of services have moved online and people rely on websites like never before for all aspects of daily living. For example, accessing voting information, finding up-to-date health and safety resources, and looking up mass transit schedules and fare information increasingly depend on having access to websites.
Importantly, the DOJ’s guidelines are only best practice suggestions and carry no true legal weight in the courts. Thus, the circuit split that fully developed in 2021 when the 11th Circuit found Title III does not apply to private business websites will continue as the legal precedent until the ADA is either amended by Congress or the Supreme Court provides an interpretation of Title III. Regardless, the DOJ’s announcement of a position that Title III applies equally to websites as to brick-and-mortar businesses signals an ongoing policy shift toward the real potential that a clear, legally binding change will be forthcoming in the near future, at least for those businesses the DOJ has noted are traditionally open to the public and form the majority of traditional ADA lawsuits:
- Retail stores and other sales or retail establishments;
- Banks;
- Hotels, inns, and motels;
- Hospitals and medical offices;
- Food and drink establishments; and
- Auditoriums, theaters, and sports arenas.
It’s easy to forget that not all impairments are permanent in nature, and that every single one of us is just one small incident away from having to rely on AT to undertake common day to day tasks and activities that can so easily be taken for granted.
A good example of a temporary mobility issue that most people can relate to is a wrist injury, which can have the immediate effect of making everyday digital tools, such as a mouse, completely inaccessible.
A good example of a temporary mobility issue that most people can relate to is a wrist injury, which can have the immediate effect of making everyday digital tools, such as a mouse, completely inaccessible.
Overlays Ineffective
None of the recent high-level remediation plans allow for overlays, and with good reason. The not-for-profit International Association of Accessibility Professionals (IAAP) recently released an official position statement that overlays are misleading when advertised as “quick fixes” for ADA compliance. In short, such overlays are not true fixes and fail to go to the root of the problem. The IAAP’s position follows an uptick in dissatisfaction with overlays, with 90% of respondents in a recent IAAP study reporting they’d seen overlays advertised with false “ADA compliant” claims. Based on the DOJ’s failure to allow for overlays in its remediation settlements, overlays cannot be recommended absent their usage alongside a more robust compliance program that also includes automated reporting and manual checks.
Main Causes of ADA Compliance Lawsuits
The DOJ guidelines suggest specific ways to ensure website compliance. These follow the same best practices as automated, weekly compliance scans, such as those offered by Monsido:
- Color contrast in text to allows persons with limited visions to read the text;
- Text causes when using color in text to assist individuals who cannot perceive the color;
- Text alternatives (“alt text”) in images to convey the purpose of an image, such as charts or illustrations for individuals who cannot see the image;
- Synchronized video captions;
- Online forms with clear labels, keyboard access, and clear instructions to allow sight-impaired individuals to utilize each form;
- Text size and zoom capability for aiding person’s with vision disabilities;
- Visual Headings built into layouts for sight-impaired individuals;
- Keyboard and mouse navigation for movement-impaired individuals;
- Automated accessibility checkers;
- Manual auditing of website accessibility; and
- Accessibility reporting.
How Does WCAG Impact Website ADA Compliance?
The Web Content Accessibility Guidelines (WCAG) provide detailed and actionable guidance on how to improve website compliance.
Unlike the Title III ADA guidelines, which have never been formally expanded to include guidance about websites to keep current with modern times, the WCAG is an ever-evolving set of standards. A working draft of WCAG 3.0 was released in 2021 and is expected to be finalized in a few years. WCAG 2.1 AA/A continues to be mandatory for Title II compliance and required by most Title III settlement agreement remediation plans.
Unlike the Title III ADA guidelines, which have never been formally expanded to include guidance about websites to keep current with modern times, the WCAG is an ever-evolving set of standards. A working draft of WCAG 3.0 was released in 2021 and is expected to be finalized in a few years. WCAG 2.1 AA/A continues to be mandatory for Title II compliance and required by most Title III settlement agreement remediation plans.
Check out our on-demand webinar
Want to learn more about the current legal landscape? Check out our webinar with attorney Jessica Youngs from Octans Legal for more insights into web accessibility compliance from a legal perspective. Watch the recording now!
