Web Accessibility Plaintiffs Shifting From Federal to State Courts in New York
In recent years, New York has been the hotbed for web-related litigation. Such cases claim that websites that fail to meet the Web Content Accessibility Guidelines (WCAG) are not accessible to people with disabilities and therefore violate the Americans with Disabilities Act. New York’s Southern and Eastern District Courts have consistently been favorable to plaintiffs in web-related ADA cases, and as a result New York has attracted more federal ADA lawsuits than any other state. According to Accessibility.com, of the 2,387 federal cases in 2022, 67% were filed in New York.
However the climate in New York has been shifting as district and appeals courts clamp down on serial filers, and as plaintiff attorneys discover that state and city laws are broader and offer monetary rewards.
Shifting Web Accessibility Tides in New York
This began in March 2022 when the Harty v West Point Realty case got pushed to the Second Circuit which upheld the district court’s dismissal for lack of standing based on a lack of “concrete” and “particularized” harm. Here the court determined that there was not sufficient injury and established that a plaintiff must demonstrate a need for the information, goods and services offered by the website and that there are “downstream consequences” resulting from the alleged inability to use the website. This affects “testers” who have no real need to visit the website other than to test it for web accessibility.
What is “lack of standing”?
Lack of standing suggests the plaintiff does not have a sufficient connection to a case to bring a lawsuit in the first place. In web-related ADA cases, lack of standing means that a plaintiff does not have a valid claim because he or she has not suffered any actual or imminent harm from the website's inaccessibility. In just the past few months, 3 cases were rejected on lack of standing in NY.
Therefore, now, in order to meet standing requirements, plaintiffs must simply add details that include when the user attempted to access the website, what they were trying to do, what specific barriers they encountered, and how they would intend to use the website in the future. Now, that’s not a very high bar, yet many who wish to continue the cut-n-paste approach seem to be shifting gears.
State & municipal courts provide new venues for ADA cases in New York
Serial plaintiff firms can alternatively take advantage of either New York State Human Rights Law (NYSHRL), or the New York City Human Rights Law (NYCHRL). These laws have broader definitions of disability and public accommodation than the ADA, and they also allow plaintiffs to seek monetary damages, which are not available under Title III of the ADA.
The New York State Division of Human Rights (DHR) enforces the New York State Human Rights Law (NYSHRL) which protects New Yorkers against discrimination based on disability in various areas including employment, housing accommodations, and places of public accommodation.
The New York City Human Rights Law (NYCHRL) is a law that prohibits discrimination in New York City in employment, housing, and public accommodations. The law also protects against discriminatory lending practices, retaliation, discriminatory harassment, and bias-based profiling by law enforcement.
One of the most active litigants in New York has shifted from Federal to State courts. According to Hand Baldachin & Asssociates LLP, the law firm of Mizrahi Kroub LLP has filed over 200 lawsuits since the end of 2022. And rather than allege violations of the ADA in federal court, these lawsuits instead claim violations of these state and city laws.
The best defense to avoid an accessibility lawsuit in any court is to simply make your website WCAG compliant
Best Defense: Make your website WCAG compliant
This is a three step process.
- Hire a third party accessibility consultancy to audit the website with experienced human testers
- Remediate the website
- Third party verification
Third Party Auditing Consultants
To ensure you get a complete view of your website’s level of accessibility hire a consultancy with experienced auditors. Look for a team that does not overly rely on automated testing tools because even the best are only capable of detecting roughly 30-40% of WCAG issue types. Automated tools are good at spidering the entire site and capturing low-hanging fruit. Then, your accessibility consultant will layer in his/her findings using human testing that includes code review, UX review, and assistive technology testing. The real value if found in a team such as ours that provides detailed actionable remediation guidance that goes beyond the canned issue libraries from automated / AI sources.
During the remediation, such a team should be on call to provide any needed support. And here, note that some providers such as ourselves can offer remediation services, however unless you do not have your own team or dedicated third party partner, do not outsource this work. This is an extremely valuable opportunity for your team to learn, and at least our audit reports are designed to be a training tool.
How Much Does A Proper WCAG Audit with Human Testers Cost?
The cost for a full audit that includes automated plus human testing is not cheap. It’s very time consuming to examine each page, test using various assistive technology devices, and then to document findings and add remediation guidance. The way we price such an audit is by the number of unique pages we need to manually test. Typically, these average in the $10K-$30K range.
Pragmatism: Reducing the Cost of ADA Auditing
In most cases this is a cost that was not budgeted for. You may not have $10K or more in the current budget cycle. In such a case, you can take a phased approach and begin by reducing the number of pages that get human testing which is for us, our core cost multiplier. We call this a keypage audit, and it allows you to get the most for the budget you have.
Beware of Subscriptions
Don't pay for what you don't need. Many of the larger consulting groups insist on a subscription model that adds monitoring tools and other services at inflated costs - especially over time. In reality, once you properly audit and remediate, a basic $49/mo monitoring tool will suffice until your next redesign. This is why we're project based.
Absolutely Beware of Overlay “Solutions”
Whether your business is based in New York or not, any plaintiff firm can make a case whether at the Federal or perhaps now at the state or municipal level. Short cuts will not significantly reduce your risk. The only way to reduce your risk of legal actions is to invest in your website and either do a redesign, making sure to hire a competent web accessibility firm that specializes in WCAG website design and development, or hire a qualified third party web accessibility consultant to properly audit and help your team remediate and reach WCAG 2.1 AA compliance.
Web accessibility is not only a legal requirement, but also a business opportunity. By making websites accessible, businesses can reach more customers, improve their brand reputation, increase their SEO, meet their DEI goals, enhance their customer loyalty, and increase their sales.