The Future of Website Accessibility Litigation
By: Hon. Ruth B. Kraft and Moish E. Peltz, Esq.
In 2022, plaintiffs filed a record number of website accessibility lawsuits against businesses in the federal court system—a total of 3,225. To put this number into perspective, five years earlier, only 814 such suits had been filed. Website accessibility lawsuits now account for 37% of all Americans with Disabilities Act suits.
Website Accessibility or Misuse of the Legal Process?
Notably, despite the proliferation of these suits, they are brought by a limited number of plaintiffs, with some individuals having serially filed hundreds of actions. Is this about accessibility, inclusivity and respect for all? Or is it a misuse of the legal process by plaintiffs and a very limited number of attorneys who specialize in these suits, using boilerplate, “cut and paste” pleadings?
Title III of the ADA prohibits a public accommodation from discriminating against any individual on the basis of disability and requires reasonable modifications toward that end.
For example, a basic Google search for “mattress” generated options at Amazon, Walmart, Casper, Target, Mattress Firm, Ashley and other nationally known retailers. Narrowing the field by location, other local retailers appeared online but certainly not a small-town Texas company that is defending a suit brought by a low-vision plaintiff.
Legislators on both the state and federal levels have considered, but failed to enact, legislation limiting website accessibility lawsuits. Certainly, the goals of the Americans with Disabilities Act are noble, but have they been hijacked by persons who have no legitimate intention of availing themselves of the services or accommodations offered on websites or at their brick-and-mortar concomitants?The fee-shifting provisions of the ADA encourage settlements simply by the threat of defendants’ obligation to pay plaintiffs’ legal fees.
"Testers" in Website Accessibility Lawsuits
Now, at long last, the United States Supreme Court has agreed to hear a case on the question of whether a “tester” has standing to bring an action against a hotel at which she had no intention to stay on the basis that it failed to provide adequate information on its accessible to persons with disabilities. The district court found that plaintiff, who has commenced in excess of 600 such suits, lacked standing to sue because she did not intend to book a room at defendant’s inn on the coast of Maine. However, the 1st Circuit Court of Appeals reversed, holding that the lack of accessibility information alone was actionable based on “dignitary harm of stigmatic injuries”. Three other circuits have rejected tester standing on the same fact pattern involving the same plaintiff, namely the 2d Circuit, 5th Circuit and 10th Circuit whereas the 11th Circuit has ruled to the contrary.
Impact on Small Businesses
One might rationally inquire whether true downstream consequences exist from any technical deficiencies in a website which could not be cured by a simple telephone call to the establishment. Additionally, allegations of technical violations of architectural standards or website accessibility standards do not, in and of themselves, establish that plaintiffs are actually prevented from the enjoyment of those businesses’ services.
This is most egregious when plaintiffs target small businesses which lack the financial resources to forcefully litigate such claims, resulting in rapid-fire settlement of the overwhelming number of them.
While the business community certainly hopes that the Supreme Court will issue a ruling which would establish a heightened pleading standard, in the interim, it must continue to defend claims with limited merit or injury-in-fact.
How Can We Help?
If your business is the recipient of an accessibility lawsuit, the Firm’s attorneys have represented defendants in website, physical accommodation and effective communication litigation as well as consulting on best practices and risk mitigation.
For questions or concerns, please contact FRB Partner Ruth B. Kraft, Partner of the Labor & Employment Law Group, at rkraft@frblaw.com, or Moish E. Peltz, chair of the Intellectual Property Practice Group, at mpeltz@frblaw.com.
DISCLAIMER: This summary is not legal advice and does not create any attorney-client relationship. This summary does not provide a definitive legal opinion for any factual situation. Before the firm can provide legal advice or opinion to any person or entity, the specific facts at issue must be reviewed by the firm. Before an attorney-client relationship is formed, the firm must have a signed engagement letter with a client setting forth the Firm’s scope and terms of representation. The information contained herein is based upon the law at the time of publication.