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2020 Digital Accessibility Lawsuit Trends

Legal book

Despite the challenges caused by COVID-19, digital accessibility lawsuits continued to increase throughout 2020, making ADA compliance an even bigger necessity as the pandemic has caused many services to move online. Digital accessibility lawsuits are civil cases filed against operators of websites, mobile apps, or any digital properties that claim inaccessibility to users with disabilities, such as those that use screen readers or keyboard-only navigation. Title III of the Americans With Disabilities Act is cited, often with the California Unruh Civil Rights Act. The start of the pandemic did cause a decrease in the number of cases filed in March 2020, but things got back to normal within a month.

The litigiousness of the digital compliance industry is a relatively new phenomenon. A large number of cases first appeared in 2016 and exponentially increased every year after. For reference, in 2016, 262 federal lawsuits were filed against non-compliant organizations. In 2019, that number had jumped to 2,235 cases. In 2020, there were more than 3,500. In the second half of 2020, there were, on average, about 313 digital accessibility lawsuits filed each month. It is also important to note that these numbers do not include the lawsuits filed on the state level or demand letters.

90% of digital accessibility cases are resolved in favor of the plaintiffs, and many more settle confidentially within days. And these are not going away. Plaintiff law firms that make money off of these suits will continue to file them, and as the Baby Boomer generation ages, the number of people with disabilities in the United States is only going to increase.

The four most targeted industries last year, in order, were: retail, food service, entertainment and leisure, and travel and hospitality, and half of the total 2020 lawsuits were filed against organizations with more than $100 million in annual revenue.

The California Consumer Privacy Act (CCPA) and the California Unruh Civil Rights Act started in January 2020, creating more avenues for plaintiffs to sue non-compliant websites and mobile apps. These new laws most likely caused the large increase in the number of lawsuits filed in California federal court from 2019 to 2020.

We’ve seen an increase in lawsuits filed against mobile apps. In previous years, the legal landscape focused on websites, but 20% of the cases in the first half of 2020 involved inaccessible mobile apps, and we are seeing this trend continue in 2021. One notable lawsuit that involves mobile apps is the ongoing Domino’s Pizza lawsuit in the Ninth District Court of Appeals for which A360’s Chief Accessibility Officer was retained for expert witness testimony.

We’ve also seen that widgets and overlays have become very popular as a thought-to-be “quick fix.” As a leading court-certified, live-user auditing company, we can’t stress it enough that these will not make your site accessible (and as we’ve witnessed in testing, they can make your site worse), nor can they protect you from lawsuits. In fact, there’s at least one plaintiff that uses screenshots of these products in their lawsuits. Perhaps they also know what we and other experts in the industry have witnessed: hundreds of organizations that already had an overlay tool on their websites were sued in 2020, and in some cases, plaintiffs specifically targeted companies that have these tools. “I am not certain all sites are truly viewed by people with disabilities prior to lawsuits being filed,” says Michele Landis, A360 Co-founder. “The claims are all very similar with most high volume plaintiff firms actually identical. I do see more and more companies starting to address accessibility compliance; just like cybersecurity and privacy, it is a critical part of operating a website or app.”

Another change this year is the switch to referencing version 2.1 level AA of the Web Content Accessibility Guidelines (WCAG) instead of version 2.0 level AA. More than 75% of federal lawsuits now reference 2.1 AA instead of 2.0 AA. A360 uses 2.1 AA for our auditing work, and we will issue a Letter of Conformance (LoC) to 2.0 AA and/or 2.1 AA. We are also preparing for the new 2.2 AA guidelines that are coming soon.

DO invest in a live-user audit of your website and/or app with a court-certified auditing company, like Accessible360.

DON’T rely on a scanning tool on your site. They only cover approximately 25-30% of the WCAG success criteria, and it can create a false sense of security if there are no errors after running the WAVE (Web Accessibility Evaluation) Tool or another SaaS (Software as a Service) product. The operators of the WAVE Tool specifically state that it should not be used to evaluate site-wide accessibility or usability, and that you should conduct manual testing.

DO create an accessibility statement saying that you are working towards becoming accessible and are working with a third party to evaluate your site. Add an email address and consider providing a phone number (both properly labeled and marked up so that users of assistive technology can get help while you improve the product!) for assistance.

DON’T install an overlay or widget.

DO get help right away on your new build/redesign project. It is never too early for accessibility, and it is actually more cost-effective and easier to review design files than it is to fix an existing website. Contact A360 for more information on Design Review and New Build Support.

For more information on anything related to digital accessibility, large format or braille print documents, statements and textbooks, or any of A360’s services, please fill out the contact form on this page!

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