Website accessibility compliance: Five steps to take in response to a lawsuit

There are dozens — if not hundreds — of serial plaintiffs who in recent years have collectively filed thousands of website accessibility lawsuits, primarily against small businesses. 

These lawsuits, which are often boilerplate, fill-in-the-blank complaints, generally allege that businesses’ websites are inaccessible to visually impaired individuals who use screen-reading software, thus denying them full and equal access to the goods and services offered on the websites.

In reality, however, at least according to some judges and defense lawyers, these lawsuits amount to nothing more than a systematic effort to abuse the legal system in the wake of ambiguous regulatory requirements, all in a designed scheme to force quick monetary settlements from small businesses.

According to UsableNet’s 2024 mid-year report, these plaintiffs have been most active in federal and state courts in California, Florida, and New York, regardless of where the business is headquartered. Further, e-commerce businesses and restaurants have been targeted in 89 percent of all website accessibility lawsuits filed to date in 2024, with education, entertainment/leisure, travel/hospitality, health care, and “other” making up the remaining 11 percent. 

“Most companies that received lawsuits have annual revenue under $25 million,” the report said.

Notably, there is no statute or regulation governing the standard for website accessibility under the Americans with Disabilities Act (ADA). Guidance issued by the U.S. Department of Justice in March 2022 indicates that businesses have “flexibility” with respect to compliance. The guidance explicitly states that “Businesses...can currently choose how they will ensure that the programs, services, and goods they provide online are accessible to people with disabilities.”

Despite such flexibility, the plaintiffs and their attorneys regularly maintain in website accessibility lawsuits that businesses should be required to comply with existing technical standards, such as the Web Content Accessibility Guidelines.

In response, it can and has been argued that these plaintiffs and their attorneys do not have the power to dictate a heightened standard for website accessibility, particularly when the DOJ has given businesses the right to “choose” how they comply.

Those legal nuances and related arguments aside, it is clear that businesses should do something. In fact, it behooves businesses to take immediate and appropriate action to ensure their websites and mobile apps are accessible to all users, not only to broaden their customer base, but also to avoid becoming the target of a website accessibility lawsuit. Some businesses have purchased accessibility widgets or overlay features for websites, which are offered by, for example, AccessiBe, UserWay, and AudioEye.

However, there is often pushback from the plaintiffs and their attorneys as to the efficacy of these AI-powered solutions. In that regard, the New York Times reported in 2022 that “many blind people find [AI-powered solutions] make websites harder to use.” For that and perhaps other reasons, some businesses with sophisticated IT/web professionals have chosen to handle website remediation efforts in-house. Others have turned to companies such as UsableNet or 216 Digital which, though more expensive, arguably provide enhanced accessibility and otherwise protect the businesses from legal action.

In the unfortunate event your business is served with one of these lawsuits, consider taking the following steps:

• Retain legal counsel as soon as possible. If necessary, request an extension of the deadline to respond to the complaint.
• Conduct an audit or scan of your website, mobile app, or both to identify any accessibility issues. There are several evaluation tools available online (e.g., UsableNet, PowerMapper, WAVE, Google Lighthouse), many of which are free.
• Consider retaining a third-party consultant to assist with any necessary remediation efforts. The investment is worth it not only for purposes of bolstering the defense of the pending lawsuit, but also to avoid future website accessibility lawsuits.
• Discuss options and related strategy with defense counsel. Generally speaking, options include (a) filing a motion to dismiss the complaint, (b) filing an answer to the complaint and then proceeding with discovery, or (c) negotiating a settlement.
• Monitor your website and mobile app, if applicable, on a regular basis to ensure new accessibility issues do not arise from changes or updates being made.

Importantly, it should be noted that lawmakers have taken steps in recent years to curb website accessibility lawsuits. But to date, no meaningful legislation has been passed, resulting in an ever-increasing number of lawsuits being filed.

In the absence of legislation or regulations promulgated at the federal or state level, businesses of all sizes that operate a website, mobile app, or both should take steps to ensure that these online systems are accessible to users with disabilities and otherwise comply with federal, state, and local disability laws.