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The global shift toward digital business practices created a massive need to ensure accessibility for websites, which provide digital space and enable interaction for their users. Meanwhile, the majority of websites still fall short of compliance with accessibility standards and the requirements of the Americans with Disabilities Act.

Unfortunately, this situation is exploited by those law firms who are in the business of earning their legal fees through filing multiple accessibility lawsuits. Those businesses who want to protect themselves from random claims need to ensure ADA compliance and accessibility to impaired users.

Over the last few years, many businesses in New York and across the United States have been caught off guard by the tide of demand letters and ADA lawsuits claiming website inaccessibility and discrimination of impaired users. Unsurprisingly, many of these lawsuits were raised by the same plaintiffs filing hundreds of simultaneous claims against randomly selected businesses.

What Are the Consequences of ADA Lawsuits?

Although the law sets a minimal cap for damages in accessibility cases, there is no limitation on the attorney fees, which is used by law firms preying on non-compliant websites. As a result, when the defendants settle early, they can expect conservative legal costs plus the cost of website remediation. However, those website owners who choose to play hardball without a viable legal strategy often face the risk of paying hundreds of thousands of dollars in legal fees.

The Americans with Disabilities Act (ADA) prohibits discrimination and aims to provide impaired people with unobstructed access to places of public accommodation. Specifically, the Title III of ADA, which is related to public accommodations and commercial facilities, prohibits discrimination on the basis of disabilities and requires these venues to comply.

The U.S. Congress adopted ADA in the year 1990, at the time when the Internet was yet unbeknownst. The new law focused on brick-and-mortar venues, including hotels, restaurants, shopping centers, doctor’s offices and other physical facilities.

ADA Does Not Have a Provision for Websites

The ADA law prohibits any place of public accommodation to refuse full and equal enjoyment of its services on the basis of disabilities. At the same time, the text of the ADA does not have any special provision for website accessibility.

In the absence of direct regulations about the application of ADA to digital space, the Department of Justice (DOJ) maintained that ADA applies to the websites of public accommodations. Meanwhile, DOJ has been continuously declining to issue website accessibility regulations.

For a long time, DOJ has adhered to Website Content Accessibility Guidelines (WCAG) but declined to adopt them as a legal standard. Instead, DOJ noted that public accommodations have the flexibility to ensure nondiscrimination and effective communication according to ADA requirements.

DOJ New Web Accessibility Guidelines

On March 18, 2022, the Department of Justice has finally published its own web accessibility guidelines, explaining how businesses can comply with ADA. The DOJ maintained that businesses should consider a variety of website features and provided a non-exclusive list of such elements, including alt text for images, color contrast, headings, keyboard and mouse navigation, online forms, text size, zoom compatibility and other aspects.

In its new guidelines, DOJ has reiterated that businesses can be flexible in how they comply with ADA. As to the WCAG, the Department of Justice was limited to only saying that existing technical standards, including WCAG and Section 508 Standards provide helpful guidance.

The standards for website accessibility, known as the Web Content Accessibility Guidelines (WCAG), were developed by the World Wide Web Consortium (W3C) back in 1999. Most U.S. courts apply WCAG Standard 2.0 AA, which was adopted in 2008, to measure website accessibility and compliance with ADA.

Accessibility Criteria under WCAG

According to the WCAG, an accessible website must meet four criteria, being:
• perceivable by allowing users to process information,
• operable, allowing full keyboard functionality and other functionality,
• understandable, that is being understood by users, and
• robust, adapting to assistive technologies.

Newer Versions of WCAG

Although courts still apply WCAG 2.0 AA, most experts recommend aiming at compliance with newer guidelines, such as WCAG 2.1, published in 2018. The newer version of WCAG incorporates the previous requirements and sets a higher bar for accessibility. Meanwhile, the W3C Consortium continues to develop accessibility standards and keeps reviewing the later WCAG 2.2 and 3.0 versions.

More information on WCAG guidelines can be found in our earlier article on ADA Website Accessibility: What Is WCAG.

Judges across the country have repeatedly applied WCAG 2.0 AA guidelines as a de facto standard for ADA compliance. Meanwhile, the U.S. courts are still split on the issue of whether ADA applies to all websites.

In particular, judges practice various approaches as to whether commercial websites without connection to a physical store fall under the scope of ADA.

Different Approaches by the U.S. Courts

According to Seventh Circuit, websites without nexus with a physical place of service, for example, an insurance company, are nevertheless places of public accommodation for ADA purposes.

In contrast, the Ninth Circuit uses a more strict definition for public accommodation, which should include the connection between a website and a physical place, for example, a physical store.

Does the Difference in Courts’ Approaches Matter for the Defendants?

In reality, the difference in courts’ interpretation of the “places of public accommodation” does not provide businesses with much relief. The plaintiffs can just choose a favorable jurisdiction to bring their claim. Thus, New York Federal Courts have become preferred battlefields for plaintiffs bringing ADA lawsuits for alleged website inaccessibility.

Courts’ Stance on Duplicative Lawsuits

Meanwhile, the courts look for specific damages to plaintiffs in ADA website accessibility cases and frequently turn down duplicative lawsuits. For example, the District Court for the Southern District of New York has ruled against the plaintiff in Mendez v. Apple Inc. after the plaintiff was unable to specify essential details from her claim. The judges may additionally penalize plaintiffs and their attorneys for frivolous ADA lawsuits.

Courts’ disfavor towards frivolous lawsuits doesn’t stop predatory law firms and their plaintiffs from attacking businesses with serial ADA claims. These plaintiffs attack companies across the gamut of industries starting from restaurants and art galleries and ending with multinational corporations such as Apple, Amazon, Blue Apron, Domino’s Pizza, Fox News, Netflix, and Nike, among many others.

How Do Serial Plaintiffs Choose a Website for Their Attack?

Most often, serial plaintiffs choose their targets at random by scanning websites with accessibility checker software and picking those which return errors. Then they file a claim saying that:
• these websites are not equally accessible to impaired users in violation of the ADA Act, or
• impaired users cannot fully or equally use or enjoy the facilities and services of the defendants due to the website’s inaccessibility, or
• make any similar claims.

What Are the Typical Claims in ADA Accessibility Cases?

In most cases, ADA accessibility lawsuits include similar language. Typically, plaintiffs claim that allegedly inaccessible websites have either of the following issues:
• lack of alt text,
• redundant or empty links,
• barriers to screen readers and screen magnifiers,
• website does not have keyboard accessibility, or
• website does not meet WCAG 2.0 AA accessibility standards.

In 2021, New York saw 2,074 ADA website accessibility lawsuits among almost 3,000 cases filed with Federal Courts in the same year. California scored second with 359 lawsuits, while Florida took the 3d spot with 185 cases. It is noteworthy that a great share of these lawsuits was filed by the same law firms who used the same serial plaintiffs to make multiple accessibility claims.

Mizrahi Kroub LLP Known for Filing Hundreds of ADA Website Claims

Mizrahi Kroub LLP from New York has been especially notorious for filing hundreds of ADA lawsuits. Some of their plaintiffs have made more than 40 ADA claims on a single day.

Most plaintiffs represented by Mizrahi Kroub filed similar claims against multiple companies. The list of Mizrahi’s most prolific plaintiffs includes Tavarez-Vargas, Jose Quezada and Robert Weekes, among many others.

Other ADA Plaintiff Law Firms Known for Serial Claims

Unfortunately, many law firms use similar tactics against businesses to earn legal fees in serial ADA accessibility claims. They use identical approaches and make the same claims, which are well-known to ADA defense lawyers.

In addition to Mizrahi and Kroub, the list of ADA plaintiff law firms known for serial claims include:
• Gottlieb & Associates
• Law Offices of Mitchell Segal
• Lipsky Lowe
• Marcus & Zelman
• Mars Khaimov Law
• Shaked Law Group
• Shalom Law
• Stein Saks
• The Marks Law Firm

You can find more about these law firms and the list of their plaintiffs in our blog on ADA Website Accessibility Cases.

Given the proliferation of ADA accessibility claims over the last few years, companies started to look for ways to protect themselves from lawsuits. Unfortunately, many of them were lured into shortcuts promising ADA compliance and website accessibility with ‘just one line of code,’ known as website accessibility overlay widgets.

Website accessibility widgets have been around for some time and already have a bad reputation. Most experts are unanimous in recommending website owners avoid accessibility overlays and opt for a full-scale website audit and remediation. Still, more and more businesses are tempted to try these solutions offering quick fixes for website compliance.

What Are Website Accessibility Overlays

Website accessibility overlays are software that scans websites for errors and repair accessibility issues. These widgets come with various functionality, starting from basic options such as font changes and ending with the application of AI technology to add missing alt text to images. They are offered at a fraction of the cost of website redesign and remediation and are particularly attractive for small and medium-sized businesses.

What Is accessiBe And What Does It Promise

The overlay solution known as accessiBe is one of the best-known examples of accessibility widgets used by more than a hundred thousand companies, including big names and multinational corporations. The widget comes with a UI adjustment tool and leverages AI machine learning technology to provide for necessary modifications. The developers promise that a website will be “compliant and accessible” in 48 hours after being scanned and modified by accessiBe software.

The limitations of accessiBe and similar solutions were revealed in a landmark Murphy v Eyebobs LLC case where the defendant company known as Eyebobs has lost the case, removed accessiBe from their website and had to embark on a full-scale website remediation plan. You can find more about Eyebobs’ failure to ensure compliance with accessiBe in the article Using an Accessibility Widget Like AccessiBe: You Risk ADA Litigation.

Why Website Overlays Cannot Ensure ADA Compliance

Website accessibility widgets can be useful in improving ADA compliance, helping to scan and repair accessibility issues. Meanwhile, compliance means addressing absolutely all issues on a website that overlay solutions are yet unable to do. In the Eyebobs’ case, it was made clear that ‘sole reliance on accessibility widgets cannot ensure compliance.’

It should be noted that most developers of accessibility widgets make disclaimers that anyone installing the widget does it at their own risk.

Although many ADA accessibility claims can be just scam, ignoring ADA demand letters or summons is a bad idea. It can result in the judge making the decision by default and granting the plaintiff relief and, most importantly, the attorney’s fees.

Ensure ADA Compliance

The only feasible way to avoid ADA accessibility lawsuits is to ensure compliance. Until your website is compliant and accessible, it may return errors to accessibility scanners and be a big spot on the radar of serial plaintiffs and their law firms.

Given the courts’ reliance on WCAG accessibility standards when judging ADA lawsuits, the most straightforward way would be to ensure that your website meets WCAG requirements. Although courts have relied on WCAG 2.0 AA standards so far, it is recommended to aim to comply with the later version of the standard, such as WCAG 2.1 or WCAG 3.0.

Since ADA compliance is a legal issue, your journey to website accessibility should start with speaking to experienced accessibility lawyers. The legal professionals defending against ADA accessibility lawsuits are well-aware of the tactics and methods used by law firms and their serial plaintiffs and can help you effectively address the gray areas of compliance.

Skip Website Accessibility Overlays

If you are still using any website accessibility widgets, you should consider abandoning them in favor of a comprehensive website accessibility audit and remediation. Website overlays can help you automatically fix some of the accessibility issues on your website but will not ensure compliance or assist you in building a solid defense against ADA lawsuits.

Run Automatic Testing

You can start your website accessibility audit with an automatic check. A checker software can reveal accessibility issues lying on the surface and decrease the time needed for manual testing by an accessibility expert.

Do Manual Testing

After the most obvious accessibility issues are identified, it is time for manual testing. An expert would run a deeper analysis of your website, which cannot be made by AI technology, checking alternative text descriptions and user experience for disabled people, among other elements.

Provide for Both Coding and Context Accessibility

When addressing ADA compliance issues for your website, the remediation team will have to address both coding and context accessibility. Coding accessibility means having a clear code that can be easily applied by screen readers and providing an effective user interface for disabled people.

Context accessibility is another aspect that requires manual testing and remediation. The scope of work includes providing meaningful alt text and notifications to enable impaired users to use all elements and functionality of your website.

Run Regular Accessibility Maintenance and Review

Websites are living spaces that develop together with the businesses and grow with each new page or plug-in. However, all too often, adding new elements or content to an existing website is viewed as a non-priority administrative task done in a rush without due attention to accessibility issues. Meanwhile, such an approach can lead to missing alt descriptions, absence of important notifications, and lack of other important elements, which can result in vulnerabilities for ADA lawsuits.

It is essential to keep accessibility in mind whenever you make changes to your website. Still, it is always necessary to run regular accessibility audits and maintenance of your website because it is so easy to miss something when adding a page, a post or a product description.