Key Takeaways from UsableNet’s 2022 Mid-Year ADA Web and App Report

August 10, 2022 BY SAMANTHA SAULD

Read the 2022 Mid-Year UsableNet Report

UsableNet, a leader in the digital accessibility and usability space, ensures that the digital world and its contents (i.e., websites, videos, apps, etc.) are free of any barriers and are accessible to all users.

Each year, UsableNet releases a report covering the top trends in regard to the Americans With Disabilities Act (ADA) and digital accessibility lawsuits. The organization’s research team reviews ADA lawsuits filed in federal courts and California state court under the Unruh Civil Rights Act.

The 2022 mid-year ADA web and app report includes data from thousands of lawsuits filed against businesses in the first half of the year. Like previous years, these businesses have been targeted for violating the ADA.

We highly recommend downloading the full report and going over the findings, especially if you’re an accessibility advocate or interested in web development.

In this blog post, we’ll cover the key takeaways from UsableNet’s mid-year report and what you should keep in mind for the year ahead.

1. Web Accessibility Lawsuits Continue to Rise

According to the findings in the report, the number of ADA-based lawsuits continues to increase. Astonishingly, there are nearly 100 new lawsuits per week in the first half of 2022 alone. This number compares to 70 lawsuits per week in 2021.

Year by year, the number of cases grows substantially, and it doesn’t seem to be slowing down anytime soon. By the end of 2022, UsableNet predicts that the total number will surpass 4,500 cases, a 10% increase from last year.

The graph shown below displays the steady rise in lawsuits over the years. So, what’s the story behind these numbers? Why are web accessibility lawsuits soaring year after year? The answer lies in the law – or rather, the lack of clarity in the law.

alt="Text Reads: Almost 100 lawsuits per week The data predicts another year of growth for ADA-based digital lawsuits. Our numbers include cases filed in federal court and those filed in California under the Unruh Act with a direct reference to violations of the ADA. Image shows the number of cases growing each year from 2018 to the middle of the year in 2022. The numbers are as follows: 2018: 2314; 2019: 2890; 2020: 3503; 2021: 4011; 2022: 4455 Estimated by the end of the year."

Image courtesy of UsableNet

With little to no legal clarity around the ADA and its implications for digital accessibility, it leaves a lot of room for interpretation. The ADA was enacted in 1990, well before the prevalence of the internet, so many assumed that it only applied to physical structures.

Much has changed since the enactment of the ADA. The internet has become a vital resource in our society that many people rely on for communication, entertainment, goods, services, and so much more. There are millions of businesses with an online presence. Without an accessible website, businesses are vulnerable to a potential lawsuit, and users with disabilities are excluded from participating in a major part of society. Although the law doesn’t explicitly state that the web and its contents must be made accessible, the growing number of cases against businesses that fail to create a digitally-inclusive experience has created a strong precedent that the ADA also applies to the internet. Ultimately, the businesses that aren’t prioritizing digital accessibility are experiencing repercussions.

In many of these ADA-based cases, the courts are in favor of the plaintiff. Law firms representing plaintiffs are realizing this and using it as an opportunity to sue organizations with inaccessible websites, which means we’ll likely continue to see an increase in lawsuits.

2. The DOJ Effect

In March 2022, the U.S. Department of Justice (DOJ) issued guidance on web accessibility and the ADA. It touched upon a range of topics around accessibility, including the barriers inaccessible websites create, tips for making web content accessible, and much more.

The DOJ recommended that businesses use existing standards like the Web Content Accessibility Guidelines (WCAG) and Section 508 of the Rehabilitation Act in order to make their websites accessible. Despite these recommendations, many accessibility advocates were disappointed in the DOJ’s guidance because it doesn’t provide precise regulation with detailed standards.

No matter your opinion on the recent guidance, it’s clear that the DOJ believes in equal access and that the ADA includes digital accessibility. In fact, the DOJ’s guidance has only reinvigorated those championing accessibility.

In particular, the UsableNet research team found that the number of cases in Florida has increased. Interestingly, the number of cases in Florida had decreased since the landmark Winn-Dixie decision, in which a blind patron filed a lawsuit against the grocery store chain because its website wasn’t accessible using a screen reader.

The graph figured below showcases the rise in cases based in Florida. In the first quarter of the year (from January to March), there were 45 cases. Once the DOJ guidance was released in March, it surged to 100 cases in the second quarter (from April to June).

The text reads: The DOJ restated a guidance in March 2022 but failed to give businesses clarity. The guidance seems to have encouraged plaintiffs rather than offered hope of relief for businesses. Image Description: Jan had 75 cases filed in California, 170 in New York and 10 in Florida. Feb had 69 in California; 208 in New York and 13 cases filed in Florida. March had 119 cases in California, 327 in New York, and 22 in Florida. April had 79 cases in California, 129 in New York, and 17 in Florida. May had 87 cases in California, 311 in New York and 48 in Florida. June had 80 cases in California, 266 in New York, and 36 cases in Florida. The text reads: Lawsuits in Florida surged after the DOJ issues its March guidance, growing from only 45 cases in the first quarter to more than 100 in the second quarter of 2022.

Image courtesy of UsableNet

The hope was that the guidance would provide unambiguous direction for web accessibility, but instead, it only pushed plaintiffs to continue targeting businesses. Many of the new cases in Florida have specifically targeted brands in the e-commerce industry. However, this isn’t much of a surprise since the DOJ stated in its guidance that e-commerce websites are most likely subject to the ADA.

3. New Players Enter the Top 10 Plaintiff List

New law firms have made their way to UsableNet’s leading ADA law firms list. There are three new defense law firms and two new plaintiff law firms.

There are far fewer plaintiff law firms than defense firms. There are over 1,000 defense lawyers across hundreds of law firms working on ADA lawsuits. Yet, there are only 38 law firms and 114 plaintiffs who’ve filed ADA lawsuits – even though they accounted for 80% of all filed cases in 2022. Although there are far fewer plaintiffs and law firms representing these parties, they still make up an overwhelming majority of cases filed.

4. Healthcare Becomes Third-Most Targeted Industry

Another finding from the mid-year report is that the healthcare industry has moved its way up on the list of industries most likely to receive a web accessibility lawsuit. Healthcare was in the fifth spot in 2021 and has since then jumped to the third spot on the list in just one year.

As shown in the figure below, healthcare falls behind the top two most targeted industries, e-commerce, and food service.

Pie chart shows e-commerce making up 74% and other industries 26%. Food service makes up 7%. Other makes up 3% and healthcare makes up 3%.

Image courtesy of UsableNet

Since the COVID-19 global pandemic, many healthcare organizations began offering services online, including viewing test results, paying bills, and booking and attending virtual appointments.

One example of a healthcare-related ADA lawsuit was against CVS Pharmacy. In April 2022, CVS Pharmacy Inc., agreed to a settlement with The Justice Department and the U.S. Attorney’s Office for the District of Rhode Island to ensure its website was free of any barriers for people with disabilities. Many screen reader and keyboard users found that the retail pharmacy’s COVID-19 vaccine registration portal was inaccessible.

With regard to the settlement, CVS agreed to make certain that its web content follows the most up-to-date WCAG standards. CVS was not alone in its web accessibility lawsuit—the resolution followed similar settlement announcements for COVID-19 vaccination website accessibility with Rite Aid Corporation, Hy-Vee Inc., The Kroger Co., and Meijer Inc.

It’s imperative that everyone, regardless of disability, has access to information and care regarding critical health services. Under the ADA, public accommodations, including healthcare, must ensure effective communication for people with disabilities. This means that auxiliary aids and accessible technology must be provided.

With the increasing need to digitize healthcare and the DOJ’s recent guidance, it’s clear why the industry has made its way to the third spot on the targeted industries list. Healthcare is an essential part of society, and everyone should have equal access to it.

5. No Company is “Too Small” to Avoid a Lawsuit

For years, companies with higher revenues have been targeted for ADA lawsuits. Having a higher revenue means the company will likely be able to pay for the legal fees associated with the lawsuit. This has led many to believe that companies with smaller revenues are safe from receiving a web accessibility lawsuit. Nonetheless, UsableNet’s mid-year report shows that trends are shifting in the ADA legal landscape.

In the first half of 2022, 73% of cases have targeted companies with relatively smaller annual revenues. As figured below, these companies make less than $25 million in annual revenue.

Image shows a pie-chart where the first 6 months of 2022 27% of all cases were companies with > 25M revenue companies; 73% of cases were with companies with < 25M revenue companies Text under the image reads: This trend could be a natural progression or due to changing consumer trends. Many of the largest companies have already been sued and have accessibility programs, which would make for a natural progression for smaller companies. The increase in e-commerce sales due to the pandemic has also brought more attention to smaller, up–and–coming e-commerce brands.

Image courtesy of UsableNet

Since a majority of the companies with larger revenues have already been targeted and sued (sometimes multiple times), new companies, in this case, with smaller revenues, have been put in the spotlight.

In particular, e-commerce companies have been mainly subjected to ADA-based lawsuits. The pandemic completely shifted consumer behaviors and changed the way we shopped. Many people began to shelter in place to limit the spread of the virus and avoided indoor businesses, including malls and restaurants. More and more people relied on online services for everyday purchases, and the e-commerce industry has since seen a boom in sales.

According to the U.S. Census Bureau’s Annual Retail Trade Survey (ARTS), e-commerce sales increased by 43% in the first year of the pandemic. The industry was already growing rapidly before the pandemic, but e-commerce sales have accelerated in growth over the past couple of years.

The exponential growth in e-commerce sales brought more attention to the smaller, up-and-coming brands that rely on the internet to sell their goods and services. Plaintiffs recognize the opportunity to target brands with inaccessible websites. Just because these companies have a relatively smaller annual revenue, it doesn’t mean that they will be protected from ADA-based litigation.

6. Accessibility Widgets Offer No Guarantees

The last finding from the mid-year report revealed that accessibility widgets are not enough to protect you from an ADA lawsuit. According to the data, businesses using accessibility widgets received more than 300 lawsuits, and we’re only halfway through the year! This compares to the 400 lawsuits filed against companies using accessibility widgets in 2021.

Businesses are discovering, unfortunately through the hard way, that widgets create a barrier to equal access for users with disabilities. The problem with accessibility widgets is that many are AI-based and only helpful for specific use cases. A number of companies that offer accessibility widget solutions falsely claim that they can protect against an ADA lawsuit and create a better user experience for people with disabilities. This couldn’t be further from the truth. Many disability rights advocates, including Haben Girma, the first deafblind graduate of Harvard Law School, have spoken out about these companies and their deceiving tactics.

The truth is that there is no quick and easy fix to ADA compliance. Many of these widgets are extremely limited in what they can do with accessibility. A few lines of code on the backend of a website doesn’t mean that the site will be fully accessible.

It’s imperative to invest in reliable accessibility solutions. Failing to do so excludes the one billion people around the world with a disability. That’s a large portion of the population and potential customers you’re missing out on. When you invest in real accessibility solutions, it’s a win-win for everyone involved.

What the UsableNet Mid-Year Report Means for Media Accessibility

When we talk about web and digital accessibility, media also falls into this conversation. We are moving toward a more technologically-centered society, yet much of the web and its contents, including video and audio, are still inaccessible to disabled people.

A number of businesses and organizations have been sued for failing to make their videos and podcasts accessible, just like with websites. Netflix, Amazon, and FedEx have all been sued for having inaccessible videos, while podcast company, Gimlet Media, was sued for having inaccessible podcasts. All of these lawsuits have set a strong precedent that the ADA also applies to video and audio content.

For a video to be accessible, it must include tools like captioning and audio description, and it must be hosted on an accessible video player. For a podcast to be accessible, it must have transcripts.

As mentioned, there is no quick fix to accessibility, and businesses must invest in reputable solutions. 3Play Media has been a leader in the video and audio accessibility space since 2007 and provides tools to make your media fully accessible.

There is still much work to be done when it comes to media accessibility and digital accessibility as a whole. Hopefully, with more specific guidance and regulations on web accessibility, we will see the number of ADA cases decrease. Until then, the number of lawsuits will likely continue to increase.

Businesses that are proactive when it comes to digital accessibility will not only avoid a potential lawsuit but will also help disabled users be more included and participate in society without barriers.

We hope you enjoyed the main findings from the report. Keep a lookout later this year for UsableNet’s end of 2022 report. In the meantime, you can view the full copy of the mid-year report here.

Learn more about how the ADA impacts online video accessibility:

How the ADA Impacts Online Video Accessibility. Download the ebook.

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