2022 Website ADA Lawsuit Statistics Summary
Three organizations recently published their studies of web-related ADA lawsuit statistics for 2022. UsableNet, a web accessibility technology and consulting firm, the law firm Seyfarth, and the digital accessibility news and resource site Accessibility.com, which together do show similar trends but also diverge here and there and reveal unique insights.
I will attempt to summarize and look for a broader outlook of the legal trends in web accessibility as we head into 2023.
First, the big numbers. Total website ADA lawsuits for 2022.
The number of reported cases range from 2,387 (Accessibility.com) to 3,255 (Seyfarth) to 4,061 (UsableNet).
The lowest numbers came from Accessibility.com which only counted cases that were solely against a website. They stripped out those that also included physical barrier elements to the case or content on the website, leaving strictly those cases that only targeted the website. These included Federal cases across the US but also included state cases from California in particular.
UsableNet reported the highest numbers that included all federal and California Unruh Act cases that include a website, mobile app, or video content. They also published their findings in November, so their final months are based on trend extrapolation.
The only key point is that was not a dramatic increase compared to 2021.
Top Industries
E-commerce is by far the most targeted channel for web-related ADA lawsuits - at 77% with food service in second at only 8% according to UsableNet. E-commerce itself isn’t really an industry however, and it would be very helpful to see this segmented at least between B2C and B2B. Accessibility.com categories businesses differently, bucketing Consumer Goods, Service & Retail at 57% with Apparel, Durables & Beauty next at only 1% - which would all be B2C.
Key point: e-commerce websites, watch your nine.
Top Web ADA Lawsuit States
All reports point to New York as the run-away leader in lawsuits with Seyfarth reporting 2,560 cases compared to Accessibility.com reporting 1,660. In reporting from Seyfarth, Calfonia slipped from number two to number four behind Florida and Pennsylvania respectively. Accessibility.com, which included state case gave a significant bump to California with a total of 646 cases.
New York is the hotbed for a number of reasons. First is that there is such a concentration of law firms there. The three law firms with the highest volume of suits are based in NY. New York state and New York City also have their own laws that do provide compensatory damages for plaintiffs. California, under the Unruh Act provides $4K for plaintiffs per property - which, in the case of a suit against a national chain would be quite substantial.
Another difference between NY and CA is the question of whether the ADA applies to online-only businesses. This year the California Court of Appeals affirmed in its ruling in August that business websites without a nexus to a physical location were not places of public accommodation. Following this, the CA Supreme Court denied the review petition. So while the state will continue to attract plaintiffs under the Unruh Act, the number of websites to target will be restricted to businesses with a storefront.
It's important to note that in many cases the defendants were not based in the state where the case was filed. For example, a plaintiff from any couch in New York can file a case against a company in any other state and have it tried in New York which is most favorable to plaintiffs.
Key points
- Online-only websites are less at risk in certain areas of the country
- Yet no matter where your business is, a plaintiff can file suit from a couch in any state
- New York and California have state laws that allow for compensation to plaintiffs
Only A Few Firms Are Filing These Lawsuits
According to Accessibility.com, 66% of these suits were filed by just 5 law firms. The top three are in NY and the next two are in California. What should give you pause about this, is just how simple the process is and how effective it is at generating revenue with very little effort. Compared physical barrier to digital barrier cases. Physical barrier cases require a tester to get in a car, drive to a location, take photos, take measurements and then go back to the office to file a report that gets shuffled along into an action. Digital testers can test any website with a cut and a paste from any couch in any state and have an action out the door in minutes.
So. If only 5 firms are creating all this havoc, imagine what the potential is. Especially when you consider just how many websites there are and how few are actually compliant. To that point, for the past three years the WebAIM team (makers of the popular WAVE WCAG testing tool) at Utah State have tested the top 1 million homepages using their automated software. Similar to past results, only 3.2% actually passed in 2022. So if 96.8% are not “ADA compliant”, this is only just getting started.
The key point is that this business model is really only being exploited by a few law firms so far. What happens when more get in on the easy money?
Pig-Piling Repeat Lawsuits
UserWay cited over 600 lawsuits that were against companies that had already received a lawsuit in the past. According to Accessibility.com, that was a 143% increase over 2021. As plaintiff firms become more sophisticated, they’re able to scan for new filings. They know that if another firm took the time to vet the defendant’s website and filed suit, it's very likely that the site is in violation. Given the time it takes to audit and remediate, that leaves a generous window for other plaintiff firms to jump in and file their own lawsuits.
Key point is that if you get a lawsuit, move as quickly as possible to properly audit and remediate. And avoid the next point in that process.
Overlays Fail To Protect Or Deliver On Claims
UsableWeb made a very important point in highlighting that almost 600 companies with an overlay widget/toolbar/plugin received a lawsuit. These companies promise a quick and less expensive “solution” for ADA compliance. Even though it’s well known that even the best AI can detect no more than 35% WCAG issues, that has not stopped these companies from cashing in on the demand for what is unfortunately fiction. More on overlays and why they should be avoided.
Key point is to not be an overlay sucker.
What to Expect In 2023
Repeat Hits
Given how easy it is to access public records of filed lawsuits online, we can expect this to grow substantially. Accessibility.com forecasts 200% increase in repeat lawsuits.
DOJ
The DOJ restated guidance in March 2022, which advocates panned for being too vague. Ultimately the DOJ has abdicated its rule-making responsibility and pushed it all onto the courts. There are new rule-making actions scheduled, but those will start first with Title ii which will apply to the websites of state and local governments. Title iii rule making affecting commercial places of public accommodation is long in the distance.
Congress
In September the Websites and Software Applications Accessibility Act was introduced in both the House and Senate by Representative John Sarbanes (D) and Senator Tammy Duckworth (D). Noting the D’s and given today’s House of Representatives climate in particular, nobody is holding their breath.
The irony is that advocates and business groups all want the same thing. They want clear and predictable rules and a fair path to accessibility without lawsuits and expensive settlements that provides universal access for all citizens to enjoy digital places of public accommodation.
Yet, in this Congress... now… ???
Influence of WCAG 2.2
Despite the unending delays for the release of WCAG 2.2, when it eventually is published, Accessibility.com predicts this may add to the increase in 2023. In the past, the shift from WCAG 2.0 to 2.1 took many years. Many suits still cite WCAG 2.0, yet anecdotally, I just had a call with a company with a fresh lawsuit in which it did not cite 2.2 criteria as fault, it does hold that the website be remediated to meet 2.2. Will 2.2 be adopted quicker this round?
Final key points
Be Smart.
Embrace Digital Accessibility Now.
Shortcuts don’t work.
Do it right.
Do it this year.
Let us help.
Author - David Gibson, President Propeller Media Works | Accessibility.Works
Photo credit : unsplash