The Covid-19 crisis transformed the online community drastically as individuals and businesses quickly pivoted their operations to accommodate remote work. With this change also came increased lawsuits in the area of digital accessibility. An accessibility claim involves a plaintiff alleging that a business' website or mobile application contains content that is inaccessible to users with certain disabilities or impairments. Accessibility claims grew in number in 2020, with a 23% increase from 2019-2020.1
Accessibility claims may be filed in both federal as well as state court, under statutes like California's Unruh Act Civil Rights Act and the California Consumer Privacy Act (CCPA). In a nutshell, these California statutes require that all persons in California be treated equally, including in regard to facilities, services, or business establishments and give plaintiffs additional pathways by which to bring accessibility lawsuits. In California alone a total of 989 cases were filed in 2020 claiming accessibility violations by businesses with online platforms. This represents almost 30% of all accessibility claims in the entire U.S.2 The majority of claims involve complaints about the functionality of desktop websites for those with disabilities, but claims calling out mobile applications and video-related accessibility concerns are significantly on the rise as well.
Under Title III of the Americans with Disabilities Act a business website must be "a place of accommodation." It lays out a list of twelve categories of covered accommodations including sales and service establishments that offer goods and services to the public. In federal court, the majority of accessibility claims filed are pursuant to ADA Title III.3
2020 Surge of Accessibility Claims
In 2020, website, apps and video accessibility claims exploded; equating to about 10 new lawsuits every business day.4 Although accessibility cases have been trending upward since 2018, with the added reliance of the labor force on remote working and website reliance for more daily activities due to the Covid pandemic, the jump was even more dramatic in the last year.
Plaintiff firms are also getting more aggressive and efficient in pursuing claims in this area. Although there was a pause of sorts in the initial stages of the Covid lockdown last year, by July plaintiffs were coming out in force to make up for lost time. By the end of 2020, accessibility claims jumped significantly above the pre-pandemic rate of filings. Another trend of 2020 was the increase in suits claiming damage due to failure to provide accessible video content to users.5 The most targeted industries in these lawsuits are retail, food service, entertainment and leisure, travel and hospitality. Half of all lawsuits filed last year were against businesses earning more than one hundred million in annual revenue. With about ninety percent of accessibility cases decided in favor of plaintiffs, it is imperative that businesses be aware of this trend and take measures to minimize its impact on their bottom line.6
Proactive Steps to Protect your Business from Accessibility Lawsuits is Key
Many businesses make the mistake of installing widgets and overlays in hopes of checking all of the boxes required to meet accessibility needs of users. Unfortunately, often these quick fixes fail to produce a website that complies with the necessary accessibility requirements and that step alone will not protect businesses from future potential lawsuits.
Never before has risk management been so critical in the space of websites. At the same time, websites have never been considered by many as a potential source of litigation based on ADA claims. Accessibility claims that immediately come to mind often do not lend themselves to cyberspace. Nonetheless, the intensity of focus on this emerging claim as evidenced by the new filings and increased awareness of the plaintiff bar means that review of exciting websites is absolutely critical.
General counsel and risk managers are well served to add website compliance audits in order to minimize litigation risk. Risk management before the suit is pivotal and the key to avoiding this emerging claim. WSHB has a team of talented lawyers that regularly help businesses with web presence navigate this emerging issue and ensure they are not on the receiving end of an ADA based suit.
1 Taylor, J. (2020, December 21). A Record- Breaking Year for ADA Digital Accessibility Lawsuits.
6 Van Note, Claire (2021, March 16). 2020 Digital Accessibility Lawsuit Trends.