2018 ADA Website Cases Surpass 2017

October 18, 2018 BY JACLYN LEDUC

Due to the Department of Justice (DOJ) withdrawing their plans to update the Americans with Disabilities Act (ADA), we won’t be seeing web accessibility regulations anytime soon. However, the lack of regulations under the ADA isn’t equating to a lack of web accessibility lawsuits. The motion to update the ADA was officially withdrawn in 2017, but the number of ADA website cases still surpassed that of 2017 within the first six months of 2018. It’s clear that web accessibility lawsuits aren’t slowing down, making the need for regulations more pertinent than ever before.

Current State of Web Accessibility Litigation

After the DOJ’s withdrawal and apparent lack of interest in regulating web accessibility, it seemed more likely that ADA website cases would become stagnant, but a report released by Seyfarth Shaw reveals that’s certainly not the case. In mid-2018, less than a year after the DOJ’s statement was made, web accessibility lawsuits far surpassed the amount of cases that took place in 2017. Additionally, the number of cases is estimated to reach nearly 1,500 by the end of 2018.

Not included in Seyfarth Shaw’s report are state suits and demand letters, which typically threaten lawsuit before leading to a settlement which often require payment an mandatory annual website auditing.

Depicting the growth of ADA website cases since 2015. In 2015, there were 57 cases and in 2016 there were 262 cases. In 2017, cases totaled 814, but by by June, cases for 2018 totaled 1,053, and are estimated to grow to 1,500 by December.

(Seyfarth Shaw LLP 2018)

ADA Website Update Put on Hold, Then Dismissed

In 2010, the DOJ announced its plans to propose regulations which govern website access under the ADA. However, on July 20, 2017, the Trump Administration published its Unified Agenda for Regulatory and Deregulatory Actions which revealed that the DOJ’s ongoing project was moved to the “inactive” list. Then, on December 26, 2017, it was officially withdrawn from any further action.

The DOJ released this statement following the withdrawal:

The Department is evaluating whether promulgating regulations about the accessibility of Web information and services is necessary and appropriate. Such an evaluation will be informed by additional review of data and further analysis. The Department will continue to assess whether specific technical standards are necessary and appropriate to assist covered entities with complying with the ADA.

As of now, the DOJ has indicated that it won’t be giving official guidance regarding website accessibility under the ADA, which was enacted in 1990 long before widespread use of the internet. The ADA has not been amended or updated to match modern technology in its 27 years of existence. Even still, many lawsuits have been brought forward claiming that websites providing goods and services render it a place of public accommodation, therefore making it a legal obligation to make websites accessible to persons with disabilities.

Currently, there’s a gray area in web accessibility regulations and litigation, and until it’s addressed by either Congress or the DOJ, questions will remain unanswered.

The DOJ Confirms Their Stance

In June 2018, Ted Budd, along with bipartisan members of the House of Representatives, wrote to Attorney General Jeff Sessions encouraging the DOJ to release clear website accessibility regulations to diminish the unclear nature of current legislation.

On September 25, 2018, the DOJ sent a letter to Ted Budd in response. It stated that, at this time, the DOJ would not be issuing web accessibility regulations under the ADA. It offers a firm reminder that “the Department has consistently taken the position that the absence of a specific regulation does not serve as a basis for noncompliance with a statute’s requirements.”

The DOJ affirms that sites of public accommodation must be accessible and says that without explicit regulations, websites can be flexible in how they choose to comply with the ADA’s general nondiscrimination and effective communication requirements.

The response to Ted Budd is hardly the answer that regulation-seekers desired, since it offers no solution to the ambiguity of website accessibility requirements under the ADA.

What This Means for Web Accessibility Regulations

Because web accessibility regulations haven’t been made clear, it’s easy for organizations to assume that they can’t be sued. Without standards to follow, websites are forced to interpret the ADA, practicing website accessibility as they see fit while trying to avoid any lawsuits. The problem is that ambiguity goes both ways. Even though a website may think it’s accessible, if a disabled person finds that it’s inaccessible, there’s grounds for a lawsuit.

Organizations aren’t invincible simply because there’s a lack of clarity in legislation. In fact, uncertainty in the law allows space for biased interpretation by anyone, including judges. Disability rights lawyer, Lainey Feingold, spoke of a growing list of judges who are leaning in the direction of the ADA applying to websites as places of public accommodation.

Andrews v. Blick Art Materials

In 2017,Curious? Learn more about accessibility lawsuits! Victor Andrews sued Blick Art Materials for website inaccessibility, claiming that it was nearly impossible for him, as a blind man, to independently navigate the site and purchase items. When Blick motioned for dismissal of the case, asking for a broad interpretation of the ADA, presiding Judge Jack Weisenstein denied it. He then went on to make one of the most comprehensive statements regarding web accessibility in a corporate suit:

Today, internet technology enables individuals to participate actively in their community and engage in commerce from the comfort and convenience of their home. It would be a cruel irony to adopt the interpretation of the ADA espoused by Blick, which would render the legislation intended to emancipate the disabled from the bonds of isolation and segregation obsolete when its objective is increasingly within reach.

The outcome of this case, as well as the growing numbers of ADA website cases show that websites should start considering themselves equivalent to a place of public accommodation. Even without web accessibility regulations being explicitly stated, they’re still at risk for being sued.

Learn more about the ADA impacts online video accessibility!

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