The deadline recently came and went for the DOJ to finally offer clarity on the issue of ADA website compliance. Fortis Law Partners Liz Hartsel discusses how the DOJ’s nonresponse could lead to an increase in litigation.
On August 30, the U.S. Department of Justice faced a congressional question-and-answer deadline regarding a costly and ongoing litigation risk for American businesses. Senators had pressed the U.S. Attorney General on the topic of ADA website compliance, seeking clarity on this increasingly litigious issue.
That deadline – and the potential for clarity – came and went without any response from U.S. Attorney General William Barr. That’s disappointing, because without DOJ guidance, it appears as though we’ll labor on as before, grappling with a continuation of the legal and technical limbo that exists today.
Increasingly, websites of practically all kinds are finding themselves targets of ADA compliance lawsuits. These suits ostensibly address problems that people with disabilities might have in accessing or using particular websites, whether they be e-commerce, SaaS sites, small-business or government websites.
Though most ADA compliance problems with user access have a technical basis – such as a website user’s audio device being unable to translate the text it encounters – other aspects of website accessibility can include lettering font and size, as well as the site’s color palette.
These lawsuits can bring injunctions, and though plaintiffs aren’t entitled to damages under the ADA, they do share in attorney fees.
For any business, these lawsuits can be expensive. For some smaller businesses, though, ADA website compliance suits can be financially devastating. It’s a steep risk faced by potential defendants, the vast majority of whom simply didn’t know their websites were not compliant with ADA mandates.
As substantial as the problem is now, it’s only getting worse. In 2018, there were 2,285 ADA website compliance cases filed in federal court, representing a 181 percent increase in the number of cases over 2017. Additionally, some defendants in these kinds of cases have faced more than one ADA compliance lawsuit. Damages are available under state law, which is why certain states such as New York are seeing an influx of cases. And companies can get hauled into court in states in which they do not intend to do business if people in those states can access their website.
Though the issue generally is most problematic for business owners, consumers can be caught in the fallout, too. For example, some U.S. counties and municipalities have recently gone to extremes and removed public records from their websites, fearing judicial jeopardy if they post documents that some users cannot access.
That the number of website-compliance cases is rising — and even provoking extreme responses — is hardly surprising when you consider what got us to this point today.
When President George H.W. Bush signed the Americans with Disabilities Act into law in 1990, it was a well-regarded and much-needed legislative step toward ensuring that all Americans would have the same rights and opportunities in the public arena.
The ADA did not, however, specify that websites were part of its Title III list of “public accommodations,” the privately owned spaces that are open to the public and where most people have a reasonable expectation of conducting commerce. By not including websites and mobile apps with the likes of physical retail stores, hotels and theaters and more, lawmakers left open the opportunity for the judicial responses we see in today’s litigious landscape.
And even though Congress amended the ADA in 2008, it still did not address whether or not a company or government website was, by definition, a “place” of accommodation for the public.
For its part, the DOJ has grappled with the topic in varying degrees of involvement, too. Unfortunately, it has offered little more clarity than Congress. Most significantly for what we see happening today, the department in 2018 stated that without “the adoption of specific technical requirements for websites through rule making, public accommodations have flexibility in how to comply” with the ADA rules.
Though suggesting businesses be essentially given a little slack in complying with the ADA rules, the absence of a clear ruling from DOJ — and little legislative direction from Washington, either — has brought the crush of lawsuits we see today.
Recently lawmakers were hoping again for legal guidance on the issue. In July, lawmakers wrote to the U.S. Attorney General, asking for an update on what the department was doing about the topic, if anything. The DOJ’s response is vital, they noted, because without “further guidance, compliance will remain a matter of increasing litigation and inconsistent outcomes.”
Lawmakers’ four-part questioning included:
- What is the DOJ doing to clarify the obligations companies face with ADA compliance?
- Does the department consider today’s Web Content Accessibility Guidelines (WCAG) 2.0 an acceptable compliance standard?
- Does the department agree that consideration should be given to available resources when an entity considers compliance?
- Is there any thought about the DOJ intervening in pending litigation to offer clarity or to push back against possible litigation abuses?
The department had until August 30 to provide answers, and each aspect of lawmakers’ questioning could have forced — depending on any DOJ response — substantial changes on how this topic is handled in the courts in the future.
Ideally, the DOJ will offer some real guidance on compliance obligations, especially on whether websites are legally considered a part of the ADA’s Title III accommodations.
Short of addressing that fundamental issue, though, Barr’s DOJ also could clear up many of the existing cases by giving an informed opinion on whether to officially mandate compliance standards, such as WCAG 2.0 or WCAG 2.1. These guidelines are used by many sites now in an attempt to make web content accessible to everyone. Though it is the de facto set of guiding website principles, it is not specifically cited as an ADA obligation.
And, of course, a DOJ response about a possible pushback on litigation abuses also would signal to business owners the department’s commitment to stopping the kinds of lawsuits that enrich defendants at the cost of providing meaningful, real-world solutions to a problem of our age.
Unfortunately, it appears the DOJ missed a real opportunity to make meaningful and needed changes regarding this topic. Barr and the DOJ might still eventually respond to lawmakers’ questioning, and we should hope they do – sooner rather than later.
In their letter to Barr, lawmakers warned that “regulation through litigation should not be the standard.” Unfortunately, it already is. And until the DOJ offers clarity on this topic, the lawsuits will only grow.
Elizabeth (Liz) Hartsel is a commercial litigator at 
