Website accessibility filings are at an all-time high and, according to our data crunching and projections, expected to keep climbing.

Why are they so popular?

Title III of the Americans with Dis­abilities Act requires businesses that pro­vide goods and services to the public to, among other things, provide physical fa­cilities that are accessible and to provide auxiliary aids and services as necessary at no extra charge to ensure effective com­munication with individuals with disabil­ities. Historically, we’ve seen large num­bers of lawsuits filed alleging a business violated Title III because its physical fa­cility—the store, or hotel, for example— contained barriers to an individual with a disability entering, traveling through or using the facility. There are specific regu­lations that state—sometimes down to the quarter-inch—how a facility must be constructed and maintained to comply with the ADA.

In stark contrast, the ADA does not contain any regulations that prescribe how a business must design, build and maintain its website to be in compliance with the act. This is not surprising giv­en that websites were hardly a glimmer in anyone’s eye when President George H.W. Bush signed the ADA into law in 1990, and given the speed with which technology has progressed since then. During the Obama administration, the U.S. Department of Justice worked on modernizing the Title III regulations to include a standard for website acces­sibility. But that never made it past the Advance Notice of Proposed Rulemak­ing stage before the Trump-era DOJ withdrew the rulemaking effort.

Private plaintiffs did not wait around for regulations. At first, a few lawsuits were filed alleging businesses with inaccessible websites denied their blind or hearing impaired clients ac­cess to the businesses’ goods and ser­vices in violation of the ADA. Blind plaintiffs claimed a website that is not coded to be properly read by a screen reader, a type of assistive technology, is not usable, and thus, not accessible to them like it is to individuals without disabilities. Hearing impaired plaintiffs claimed they are denied equal access to informational videos that contain audio if those videos are not captioned. Over the years, as these lawsuits began to be litigated, with some decisions favorable to plaintiffs, more lawsuits were filed— especially in those same courts, and often by the same plaintiffs attorneys. And many courts held that they did not need regulations to decide whether a website was accessible, and thus, could be held to violate the ADA or not.

BY THE NUMBERS

In 2013, the first year we began crunching numbers, we counted at least 2,722 lawsuits alleging any vio­lation of Title III of the ADA filed in federal courts. Over the next few years, that number steadily grew. In 2017, plaintiffs filed 7,663 such lawsuits. And in the first six months of this year, plaintiffs have already filed 4,965 law­suits. If filings continue at the same rate as they have been filed thus far in 2018, there will be just under 10,000 ADA Title III lawsuits filed in federal courts by the end of 2018—an approxi­mately 30 percent increase over 2017. (This count only includes lawsuits filed in federal courts and doesn’t include lawsuits filed in state courts or actions pursued through demand letters.) The top states for Title III filings in federal courts are California followed by New York then Florida.

As for website accessibility lawsuits, plaintiffs filed more of those in federal courts for the first six months of 2018 than in all of 2017. There were at least 1,054 of such lawsuits in the first six months of 2018, compared to 814 in 2017. If the filings continue at this rate, there could be more than 2,000 web­site accessibility lawsuits filed in fed­eral court for 2018. New York federal courts—where two decisions favorable to plaintiffs were issued in 2017—have seen the majority of those lawsuits with 630, followed by 342 in Florida.

Simply stated, this trend shows no signs of subsiding.

MITIGATING RISK

Engage counsel experienced in digital accessibility. It will save the business a ton of time, money and grief. That counsel will connect the business, under privilege to the extent possible, with a reputable digital accessibility consultant. The consultant would be the type that would qualify as an expert the business could rely upon to testify in court if needed and would assist with the technical evaluation and consultation regarding the website or app’s coding.

Prepare policies and procedures to ensure your business website is created and maintained in an accessible fash­ion. Post an accessibility statement on the website that informs the public of the company’s commitment to accessi­bility and how to contact the company with any accessibility-related issues or concerns. Train all folks who touch the website and interact with customers regarding the company’s website poli­cies and procedures. Hire or designate an accessibility lead and/or team to oversee all these efforts and the com­pany’s accessibility program on an ongoing basis to make sure it sticks.

With these lawsuits not going away anytime soon, these actions are great initial steps to make sure businesses are as prepared as possible.

Kristina Launey and Minh Vu, partners in Seyfarth’s Washington, D.C. and Sacramento, California, offices, lead Seyfarth’s disability access team and blog www.adatitleiii.com. They both regularly defend businesses in disability access litigation and help businesses comply with the ADA and equivalent state laws.