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“Over the past decade, courts have been increasingly inundated with lawsuits filed by individuals with disabilities claiming that businesses’ websites are not accessible to them. These lawsuits, filed mostly by people who have sight or hearing disabilities, allege discrimination in violation of various local, state and federal laws.

Statutory, Regulatory and Technical Background

Title III of the ADA requires that “places of public accommodation”—public-facing businesses that fall within at least one of 12 categories—provide “equal access” to their goods, services and facilities to individuals with disabilities. 

As a result, plaintiffs filing website accessibility lawsuits are basing their causes of action on two legal theories. The first is based on Title III’s “equal access” and general nondiscrimination mandate. The second is based on the more specific requirement that places of public accommodation provide auxiliary aids and services as may be necessary (at no extra charge) to ensure effective communication with individuals with disabilities. While websites and mobile apps are not mentioned anywhere in Title III or its regulations, the phrase “auxiliary aids and services” is defined to include “accessible electronic and information technology,” which would cover websites and mobile apps.

In 2010, the Department of Justice (DOJ) started the rulemaking process to specifically address ADA requirements for website accessibility, including technical standards for accessible websites. 

 In addition, the Web Content Accessibility Guidelines (WCAG) 2.0 and 2.1 Level AA, developed by the private international World Wide Web Consortium (W3C), has emerged as the benchmark standard. The general consensus is that if businesses adhere to this standard in developing, coding and maintaining websites and mobile apps, their websites will be accessible to individuals with disabilities. The WCAG is a legal requirement under some federal laws, such as Section 508 of the Rehabilitation

Act, the Air Carrier Access Act and section 1557 of the Affordable Care Act. Some courts have adopted the WCAG 2.0 Level AA as the accessibility standard for compliance in fashioning injunctive relief under the ADA.

The Lawsuit Explosion

Based on our analysis of court filings, federal courts across the country have been flooded with well over 8,000 digital accessibility lawsuits filed or removed between 2017 and 2020. In 2020, over 85 percent of these federal filings occurred in three states— New York, Florida and California.

Since 2018, website and mobile app accessibility lawsuits have made up roughly a fifth of all ADA Title III filings in federal courts, which now consistently exceed 10,000 lawsuits annually.

These numbers do not include the substantial number of website and mobile app cases filed in state courts, demand letters that are resolved prior to the filing of any lawsuit, and DOJ enforcement actions that resolve before suit is filed.“

source:

https://www.americanbar.org/groups/law_practice/publications/law_practice_magazine/2022/jf22/vu-launey-egan/