In recent years, an alarming trend has emerged in the legal landscape: the filing of mass lawsuits alleging violations of the Americans with Disabilities Act (ADA) due to purported website accessibility deficiencies. While the ADA was enacted to ensure equal access for individuals with disabilities, certain plaintiffs' firms have co-opted its noble purpose as a tool for financial exploitation. This article examines the legal issues surrounding these lawsuits, the motivations behind their proliferation, and strategies for businesses and defense attorneys to combat these predatory practices.

The Legal Framework of ADA Website Accessibility

The ADA, enacted in 1990, prohibits discrimination against individuals with disabilities in places of public accommodation (42 U.S.C. § 12182). Title III of the ADA applies to businesses open to the public and mandates that they provide equal access to goods and services. However, the statute predates the internet era, leaving courts to interpret whether websites qualify as “places of public accommodation.” The U.S. Courts of Appeals are divided on this issue. For example, the Ninth Circuit in Robles v. Domino's Pizza, LLC, 913 F.3d 898 (9th Cir. 2019), held that websites and apps connected to physical locations must be accessible under the ADA. Conversely, the Eleventh Circuit in Gil v. Winn-Dixie Stores, Inc., 993 F.3d 1266 (11th Cir. 2021), limited ADA applicability to physical spaces, excluding websites. This legal uncertainty creates fertile ground for litigation. Some courts have argued that websites can independently qualify as public accommodations without needing a physical nexus (e.g., District of Massachusetts in Nat'l Ass'n of the Deaf v. Netflix, Inc., 869 F. Supp. 2d 196 (D. Mass. 2012)). 

Although the Fifth Circuit (covering Texas, Louisiana, and Mississippi) has not explicitly ruled on this issue, its ADA decisions emphasize textualist interpretation. In other ADA contexts, the Fifth Circuit has limited expansive readings of the statute when the plain language does not support such interpretations. Based on its history, the Fifth Circuit would likely require a nexus between the website and a physical place of public accommodation. This reasoning aligns with the plain-text reading of Title III and the statutory focus on physical accessibility. Courts within the circuit might echo the Ninth Circuit's logic in Robles, where the ADA applies to websites only if they facilitate access to goods and services of a physical location. Absent such a connection, websites may fall outside the scope of the statute. However, because this issue remains unsettled in the Fifth Circuit, businesses operating in its jurisdiction should act with caution.

If/when a court finds that the ADA applies, the standard for compliance is “reasonable accommodation.” The meaning of this standard as it relates to websites is not defined under law, leaving a lot to court interpretation. Many courts and enforcement agencies refer to the Web Content Accessibility Guidelines (WCAG) as the benchmark.

Plaintiffs have found certain hotspots for these suits, where they believe the law is more favorable. For instance, in 2023, 77% of the 2,794 website accessibility lawsuits filed in federal court were filed in New York. Other frequent jurisdictions include California, New Jersey, and Pennsylvania. 

State and Local Laws Addressing Website Accessibility

New York has implemented state and local laws on the topic. The New York State Human Rights Law (NYSHRL) (N.Y. Exec. Law § 290 et seq.) provides additional protections for individuals with disabilities. It mirrors and, in some cases, expands upon the ADA’s requirements. Under the NYSHRL, businesses must ensure that individuals with disabilities have full and equal access to all accommodations, services, and facilities—a standard courts have interpreted to include websites. 

Locally, the New York City Human Rights Law (NYCHRL) (N.Y.C. Admin. Code § 8-101 et seq.) is one of the broadest anti-discrimination laws in the country. It explicitly requires accessibility for individuals with disabilities, and courts often interpret it more liberally than federal or state law. Businesses operating within New York City are held to a higher standard under the NYCHRL. 

New York litigants typically assert both federal ADA and state/local law claims, as the local and state law offer additional damages not recoverable under the ADA. Specifically, New York state and local law offer the availability of compensatory damages (such as emotional distress) and the New York City local law even allows for punitive damages in some cases.

The Exploitative Nature of Mass ADA Website Claims

Certain plaintiffs' firms have weaponized the ADA’s ambiguity to file cookie-cutter lawsuits against businesses, alleging that their websites fail to comply with the Web Content Accessibility Guidelines (WCAG). These guidelines, while widely recognized as a standard for accessibility, are not legally mandated by the ADA or any federal regulations. Rather, WCAG presents a set of voluntary technical standards developed by the World Wide Web Consortium (W3C). While WCAG is widely regarded as a best practice, it has not been formally adopted as a legal standard under the ADA, leaving businesses in a precarious position.

These lawsuits often follow a familiar pattern:

• A plaintiff—often a serial/professional litigant—claims he or she was unable to access a website due to noncompliance with WCAG standards.
• The demand letters or complaints seek quick settlements, leveraging the threat of expensive litigation.
• Many targeted businesses are small to medium-sized enterprises that lack the resources to mount a robust defense, leading to settlements that enrich the plaintiffs' firms without advancing accessibility.

Critics argue that these filings represent a “money shakedown” rather than genuine advocacy for disability rights. These claims are often filed without prior notice to the business, giving defendants little time to address the alleged violations before facing litigation. In many cases, the lawsuits are accompanied by settlement demands designed to pressure businesses into quick payouts, avoiding the high costs of prolonged litigation.

Ethical Concerns, Judicial Backlash, and Legislative/Regulatory Responses

The ethical implications of this litigation strategy are troubling. Rule 3.1 of the ABA Model Rules of Professional Conduct prohibits attorneys from bringing frivolous claims. However, the low threshold for filing lawsuits allows questionable claims to proceed, burdening courts and defendants.

Courts have begun to recognize the abusive nature of these lawsuits. For instance, in Brooke v. Super 8 Worldwide, Inc., No. CV-20-00311 (D. Ariz. 2020), the court dismissed the plaintiff’s claims, noting a lack of standing and evidence of good-faith efforts to comply with accessibility standards. Similarly, in Laufer v. Arpan, LLC, 29 F.4th 1268 (11th Cir. 2022), the Eleventh Circuit found that "tester" plaintiffs lacked standing when they did not intend to use the business’s services. In Lopez v. Arby’s Franchisor, LLC, No. 19-cv-10074 (S.D.N.Y. 2020), the court dismissed the plaintiff’s complaint, finding no concrete injury. Similarly, in Gillespie v. Cracker Barrel Old Country Store, Inc., No. 21-1324 (E.D. Pa. 2022), the court questioned the good faith of serial plaintiffs.

On the legislative front, bipartisan efforts have been made to address the issue. The Online Accessibility Act, introduced in 2021, sought to provide clarity by codifying WCAG as the standard for website accessibility and requiring plaintiffs to provide notice before filing suit. While the bill has not yet been enacted, its provisions highlight the need for a balanced approach that protects businesses while promoting genuine accessibility.

The DOJ has issued final rules on website accessibility, but these apply only to state and local governments, not private businesses. However, the provisions are telling and arguably transferable to businesses. For instance, the DOJ has clarified that full compliance is not required for a website to be compliant with the ADA where the noncompliance has minimal impact on access to the information. 28 CFR § 35.205. As noted, this regulation applies only to governmental entities, who arguably have an even greater duty to accommodate persons with disabilities. If substantial compliance is acceptable for a government website, certainly technical perfection is not required of a private business. However, this has not stopped plaintiffs’ firms from targeting businesses that have already made substantial efforts to accommodate persons with disabilities.

The Cost of Frivolous Litigation

For businesses, particularly those with limited resources, the costs of defending against an ADA website compliance lawsuit can be staggering. Legal fees, expert witness costs, and potential settlements can quickly add up, even in cases where the claims lack merit. According to a report by UsableNet, over 4.600 ADA website accessibility lawsuits were filed in the U.S., representing a significant increase from prior years.

The impact extends beyond financial costs. Many businesses find themselves discouraged from investing in accessibility improvements out of fear that any effort short of perfection could invite further litigation. This perverse incentive undermines the ADA’s goal of promoting accessibility and inclusion.

Practical Advice for Businesses

To mitigate the risk of frivolous lawsuits, businesses should take proactive steps to enhance website accessibility:

1. Conduct an Accessibility Audit: Engage qualified experts to assess your website’s compliance with WCAG standards. Regularly audit your website against WCAG 2.1 Level AA standards. Use automated tools and manual testing with individuals who have disabilities.
2. Implement a Remediation Plan: Prioritize fixes for critical accessibility issues and establish an ongoing process for updates.
3. Adopt an Accessibility Policy: Publicly commit to accessibility and provide a mechanism for users to report issues.
4. Document Efforts: Maintain records of accessibility improvements to demonstrate good-faith compliance efforts if challenged. Courts are more sympathetic to businesses that can demonstrate a good-faith effort to comply with accessibility standards.
5. Establish a Feedback Mechanism: Provide an easily accessible way for users to report accessibility issues, and address complaints promptly.

Strategies for Defending Against Frivolous Claims

Successful defense attorneys must adopt a multifaceted approach:

1. Challenge Standing: Courts require plaintiffs to demonstrate actual harm. Defense counsel should rigorously scrutinize whether the plaintiff encountered genuine barriers or merely conducted a "drive-by" website audit.
2. Demand Specificity: Vague allegations should be met with motions for a more definite statement under Rule 12(e) of the Federal Rules of Civil Procedure.
3. Leverage Expert Testimony: Accessibility experts can provide critical evidence to dispute claims of noncompliance with WCAG standards.
4. File Early Motions to Dismiss: Highlighting the lack of regulatory clarity or precedential authority can persuade courts to dismiss baseless claims, especially for online-only businesses.
5. Expose Bad Faith: Discovery can reveal whether the plaintiff or their counsel has filed a high volume of identical lawsuits, undermining their credibility.

Conclusion

While the ADA’s purpose of fostering inclusivity is laudable, its misuse as a tool for financial gain undermines its integrity. The ADA was not intended to serve as a vehicle for opportunistic litigation. Defense attorneys play a crucial role in protecting businesses from predatory lawsuits while promoting legitimate accessibility efforts. By challenging frivolous claims and advocating for clear regulatory guidance, defense counsel can curb this litigation abuse and refocus the ADA on its intended mission of advancing equality for individuals with disabilities. As courts and legislators work to address this issue, businesses must remain vigilant and proactive in their compliance efforts. Only through a balanced approach can we achieve the ADA’s vision of equal access for all.

To inquire further on these topics, Michael Best has various attorneys with expertise in ADA website compliance, including Katie Fillmore, Amy Bruchs, and Benjamin Johnson.