DOJ’s Failure to Provide Effective Guidance on Website Accessibility Requirements under the ADA Leaves Congress as the Only Option to Address the Problem of Abusive Lawsuits

New York Law Journal

Over the past five years, businesses with an online presence have been pummeled with lawsuits accusing them of having websites that are supposedly inaccessible to the blind and hearing impaired in violation of the Americans With Disabilities Act (ADA). The number of such cases has gradually climbed to a rate of 10 per day, with over 4,000 cases filed in 2021 (quadrupling the number of such cases filed in 2017). The increase is the consequence of a particular void in the law—the absence of any codified achievable standards explaining what’s required to have a certifiably “accessible” website. Serial plaintiffs’ lawyers have enjoyed an unfair advantage, allowing them to relentlessly pursue “sue and settle” nuisance lawsuits which disproportionately affect small and mid-market companies with low operating margins.

Targeted businesses, which have aggregately paid out millions of dollars in extortive settlement payments, were eagerly waiting for the U.S. Department of Justice (DOJ)—as the agency charged with issuing regulations to carry out the force and effect of ADA—to use its regulatory authority to provide clarity as to what series of steps can be taken to certify a website’s accessibility. To their chagrin, on March 18, 2022, the DOJ effectively abstained and, instead of regulating, issued a nonbinding sub-regulatory statement called Web Accessibility Guidance Under the Americans With Disabilities Act, which purports to describe how businesses can ensure that their websites are accessible. Unfortunately, it does no such thing. The DOJ’s ineffective course makes it all the more important for Congress to step in to curb predatory website accessibility lawsuits.

Title III of the ADA prohibits discrimination against people with disabilities in places of “public accommodation.” The statute enumerates several accommodations (e.g., restaurants, hotels)—all physical locations—and requires them to meet certain standards of accessibility. Since the ADA predates the Internet, the legislative text imposes no obligation on businesses to make websites accessible. Nevertheless, the DOJ and certain federal courts have stretched the ADA to require websites to be accessible to disabled visitors. While it sounds like a noble goal, the problem is that there is no existing regulatory standard against which to measure accessibility. This stands in sharp contrast to heavily regulated brick and mortar businesses where, for example, every retail store owner knows that it must provide at least one sales counter that is accessible to wheelchair bound customers. Owners also know that to be accessible, a portion of the counter’s surface must be at least 36 inches long and no more than 36 inches high. Owners know this because, in carrying out the provisions of the ADA, the DOJ issued the ADA Accessibility Guidelines (ADAAG), which are legally binding standards for determining whether a facility is accessible for ADA purposes. Critically, compliance with the ADAAG acts as a safe harbor for a business sued for ADA violations. A physical business facing an ADA lawsuit can defeat that lawsuit prior to trial if an ADA accessibility expert can certify the premises as ADAAG compliant. The law recognizes, as it should, that plaintiff’s lawyers cannot rebut undeniable numbers on a tape measure with their own alternative set of facts.

Because the DOJ has never promulgated any standards of online accessibility, plaintiff’s lawyers have enjoyed an undeniable (and patently unfair) advantage in ADA website accessibility lawsuits, which has resulted in businesses paying millions of dollars in unjustified settlement payouts. The typical lawsuit is commenced with a cut and paste boilerplate complaint which takes a negligible amount of time to prepare. The cases are designed to force early cost benefit driven settlements. More than 90% settle quickly because, in the absence of achievable standards, the question of whether a website is accessible often presents “factual” issues that preclude early dismissal. Indeed, if I had a nickel for every client who called to ask me if they can get their case dismissed because their “website has been certified as ADA compliant,” I would have retired several years ago. Unfortunately, while there is no shortage of accessibility experts able to provide detailed audits disproving the often-vague allegations of a complaint, under the present landscape the plaintiff can avoid dismissal by submitting a report by some hack expert claiming to find a handful of barriers on the website. Faced with the choice between the relative low cost of settling and the high cost and uncertain outcome of protracted litigation, most businesses choose to pay the ransom even when their website is meaningfully accessible. For the average business owner, it is incomprehensible that the current situation is allowed to exist. Rightfully so. Given the absence of clear statutory authority and a final DOJ rule, private ADA website accessibility lawsuits violate due process, and it is shocking that we have allowed this to go on for this long.

The DOJ is partly responsible for this problem, but it is also the potential source of a solution. After taking certain enforcement action against website operators and issuing statements declaring that the ADA applies to websites, in 2010 the DOJ commenced a proposed rulemaking process which contemplated adopting accessibility requirements based on the World Wide Web Consortium’s Web Content Accessibility Guidelines 2.0 Level AA Success Criteria (WCAG 2.0). However, in early 2017, as part of the Trump administration’s stated objective of “deconstructing the regulatory state,” the DOJ terminated the rulemaking process, which left all e-commerce businesses vulnerable to predatory litigation. The present chaotic landscape ensued.

Despite having ample opportunity to address the issue, the DOJ has failed to advance the ADA’s purpose of providing “clear, strong, consistent, enforceable standards addressing discrimination against individuals with disabilities.” Instead of creating a safe harbor, the new Guidance reads like a typical ADA plaintiff’s complaint—vaguely listing several common problems, explaining why accessibility is important, and promising to describe how businesses can ensure accessibility. But instead of specifying a series of actions that would guarantee ADA compliance, the Guidance merely points to third-party resources (e.g., WCAG 2.0) for information on how to make websites accessible. The DOJ ignores that these resources have been around for years yet have done nothing to stem the tide of abusive litigation. The Guidance is no substitution for what is desperately needed—a fixed safe harbor definition of an accessible website. Until that happens, businesses will continue to pay the price.

What’s more, the Guidance reaffirms the DOJ’s commitment to interpreting the ADA in a manner that finds no support in the statutory text or history—i.e., declaring that the ADA’s requirements apply to all the goods, services, privileges, or activities offered by public accommodations, including those offered on the web. To the extent this statement was meant to include purely e-commerce businesses, it is inconsistent with the ADA drafters’ intent. Congress could easily have said that the ADA applies to “all businesses operating in interstate commerce,” or all “retail” or “service” operations. But even though it amended the ADA in 2008 (when the internet was already prevalent), Congress never expanded on the enumerated categories of public accommodations, which remain expressly limited to physical places. The reason, perhaps, is that the ADA is not yet conducive to the website context. Indeed, it is telling that after so many years the DOJ is still unable to articulate for websites the type of achievable standards that protect physical businesses from abuse.

It is time for Congress to act. In December 2021, the Online Accessibility Act was introduced in the House of Representatives. Unlike the DOJ’s largely useless Guidance, the proposed Act recognizes that a predictable regulatory environment is critical for businesses. The Act would, among other things, officially adopt the WCAG 2.0 AA criteria. More importantly, it would require plaintiffs to first exhaust certain administrative remedies designed to give businesses the opportunity to remedy any alleged accessibility barriers before being sued. Any would-be plaintiff still desiring to sue would have to plead each element of the claim with particularity, including the specific barriers to access. Although the proposed Act is not perfect, given the DOJ’s failure to regulate, it is the last remaining hope to restore due process and level the playing field.

“DOJ’s Failure to Provide Effective Guidance on Website Accessibility Requirements under the ADA Leaves Congress as the Only Option to Address the Problem of Abusive Lawsuits,” by Martin S. Krezalek was published in the New York Law Journal on April 28, 2022. Reprinted with permission.