2023 ADA Web Accessibility Lawsuit Statistics Reporting Summary
Of the three reports to expect each year analyzing the previous year’s web-related ADA lawsuits, two are out. UsableNet and Accessibility.com have published, and once Seyfarth publishes, I’ll update this post.
What jumped off the page for me was to see how lawsuits involving “overlays” have jumped from last year. But we’ll get to that. Let’s start with the top line numbers.
2023 Accessibility Website Lawsuit Totals
Comparing top-line numbers of ADA lawsuits between UsableNet and Accessibility, there is again quite a discrepancy - similar to last year. Each tracked both Federal and State - at least in UsableNet’s case, specifically New York and California - with their respective state laws on digital accessibility.
According to UsableNet, 2023 yielded 3,086 federal suits and 1,519 state suits, for a grand total of 4,605.
Comparatively Accessibility.com reported more than half of what UsableNet cites, with a total of 2,281 lawsuits. In comparison to the previous years, Accessibility.com found a slight 4% drop in lawsuits in 2023 over 2022. This is fairly consistent with last year (2,387 v 4,061) with Seyfarth right in the middle at 3,255. But let’s not get distracted by this.
Federal & State Lawsuits vs Demand Letters
In practice the biggest impact isn’t from federal or state lawsuits. They come from the demand letters that threaten suit, if you don’t pay up. Hence why the term "extortion" is often used. Companies that receive these settle before ever entering the court system, and as such are not recorded. If they were, we would see a much clearer view of the impact of this small number of highly active serial plaintiff firms.
The Big News: 30% of Lawsuits Involved Websites Using Overlays
First, what’s an overlay? An overlay is at best a bandaid that injects code to mask over accessibility barriers. They claim to be capable of making a website ADA compliant overnight. They use the term “AI”. A lot. Yet despite their well documented failures and false claims, companies continue to take the bait - they appear to be quick and cheap… until the lawsuit drops.
Not only do they put businesses that use them in legal jeopardy, they fail to serve actual people with real disabilities. In fact, they often introduce new barriers and block their native screen readers. They are widely opposed by accessibility advocates and professionals in the industry.
Attorneys and courts are catching on. According to UsableNet, 2023 saw a 60% increase in lawsuits against websites using overlays and that increase means that overlays contributed to 30% of all accessibility lawsuits. Many lawsuits even cite the widget itself as the barrier. According to UsableNet, 933 businesses using an overlay were sued. Based on their total of 4,061 suits, 30% of all state and federal lawsuits are at least partially attributable to overlays!
New York - Ground Zero for ADA lawsuits. Shift to State Lawsuits
New York has outpaced second place California by quite a stretch, as it has for as long as I can recall. There are a few reasons for this. One is simply that there are a ton of lawyers in New York - 185 thousand. And California comes in second place with 168 thousand attorneys. Cue the lawyer jokes...
California is also a “no place, no case” state where companies without a physical presence are not considered “places of public accommodation”. In New York and the broader 2nd Circuit, any commercial website can be targeted whether they have a storefront or not.
Both states also have their own state laws to protect the civil rights and non-discrimination of their citizens. Both state laws allow for damages and plaintiff reward. And, in New York, this is the new approach that serial filers are taking.
Does this mean that if your business is not in New York or California then you’re in the clear? Heck no. All it takes is for a New York “plaintiff” to visit your website and find it not accessible. More on shifting from federal ADA laws to New York State and City accessibility laws.
Large or Small, All Businesses Are Vulnerable
As UsableNet points out, 73% of lawsuits targeted businesses under $25M. Fact is, most large businesses have already been sued at least once, and have since invested appropriately in proper manual audits and subsequent remediation. Smaller businesses tend to only address accessibility after they’ve been sued. We should expect this trend to grow, for as UsableNet points out, there are 33.2M small businesses in the US, providing a large pool of easy targets.
Ecommerce - Target One for Accessibility Lawsuits
Ecommerce sites accounted for 82% of lawsuits according to UsableNet. And to the previous point regarding large vs small business targeting, 82% of the top 500 ecommerce companies have already been sued. Therefore smaller companies selling online should do all they can to properly audit and remediate their websites… quickly.
Websites vs SaaS vs Mobile Apps
Both UsableNet and Accessibility.com agree that 97% of lawsuits targeted websites. The reason is because it is extremely easy to test websites to determine “ADA compliance” with a free testing tool. They’re completely exposed. In contrast, you generally need to buy or register for a web-based SaaS application or a mobile app. Accessibility.com predicts a 300% increase in mobile apps/websites ADA lawsuits, suggesting that the lawsuit market in websites is saturated. I don’t think so. According to Siteefy, there are 133 million websites in the US. This handful of serial plaintiff law firms have no lack of targets.
How to Avoid Becoming An ADA Lawsuit Statistic in 2024?
Becoming accessible and legally compliant with the ADA and state laws, a website must meet the standards established in the Web Content Accessibility Guidelines. These are standards recognized internationally, and this year they evolved to WCAG 2.2. To be compliant in the US and for those selling goods online in Canada, Great Britain, EU, etc., websites, SaaS and mobile apps need to currently conform to WCAG 2.1 A, AA.
First Step Toward Legal Compliance: A WCAG Audit
And this is where we come in. The first thing you must understand is that software alone can at best only detect about 30% of WCAG issues. This is also a key reason why overlays fail. The WCAG is nuanced and interpretive. And many user scenarios such as key-board only use just can’t be detected by software. This is why manual testing by qualified WCAG auditing professionals is essential. In our case, all of our auditing consultants have over 19 years of digital accessibility experience, and our team lead serves on W3C WCAG 2.2 and 3.0 working groups. We don’t have time or patience with junior staff. Only top-level consultants work on our audits.
When we audit a website for WCAG compliance, we test assess the UX, the code and we perform assistive technology testing - primarily using screen readers. We compile a highly detailed audit report that not only shows where and what the issue is, but how to address it.
Step Two: Remediation
Here, your existing web development team or partner steps in and performs remediation. If you do not have such a team, our Propeller Media Works web team can provide remediation on Wordpress and Shopify websites.
Once Remediation is complete, we return and run a verification audit to ensure that each issue is properly addressed.
At that point, we can also author a Voluntary Product Accessibility Template. The VPAT was originally used by government agencies to ensure all digital products are WCAG compliant. Today, companies also use it to document their level of compliance.
The key point is to just not become a statistic in this year's reporting. There are plenty of benefits to web accessibility that will increase market reach, website usability and conversions, SEO, and its a great way to express your corporate values and commitment to DEI.