SCOTUS Declines to Break Logjam Over ADA Website Compliance

Supreme Court leaves open whether Americans with Disabilities Act applies to websites

For the last six years, the Americans with Disabilities Act (ADA) has driven a legal gold rush among a tiny group of ethically questionable law firms. 

Since 2018, a handful of attorneys across the country have filed or threaten to file thousands of lawsuits against businesses large and small for alleged violation of the ADA for failing to make their websites accessible to disabled visitors. At issue, however, is whether the ADA even applies to websites.

After federal trial and appeals courts nationwide split on the issue, the United States Supreme Court passed on the opportunity to settle the question by ruling the case moot. Consequently, the answer to the applicability of the ADA to websites remains open and subject in some part to jurisdiction.

Letter to Congress births an ADA website compliance cottage industry

When Congress passed the ADA in 1990 – in the embryonic days of the internet age – the legislation applied largely to architectural barriers. 

Specifically, the law required places of “public accommodations” to be physically accessible to customers and visitors regardless of physical ability. To this day, the accommodations include retail businesses, hotels, restaurants, and museums, to name a few. 

That’s why we see handicap parking spaces almost everywhere, along with wheelchair ramps around staircases. Twenty years ago, no one seemed concerned about website accessibility.

Everything changed in 2018, when the U.S. Assistant Attorney General sent a letter to Congress saying that the ADA covers websites as well. Specifically, websites must be fully accessible for both the hearing and sight impaired.

The next year, ADA lawsuits against website publishers tripled, according to UsableNet, an online-accessibility consulting firm that tracks such suits. 

The 2018 number nearly doubled in 2023. Yet this number does NOT include threats of lawsuits in the form of demand letters to targeted defendants.

Critics say the bulk of legal actions are essentially shakedowns. According to UsableNet, a mere 10 law firms account for more than four out of five lawsuits filed.

The suits are typically filed in bulk against businesses in certain industries, attorneys say. Ecommerce sites account for nearly 80% of suits thus far, Usable Net reports, while the food services industry is targeted 11% of the time. The plaintiffs’ lawyers use boilerplate letters and draft lawsuits, filling in a few blanks pertinent to each website. 

The methodology is so automated that the lawyers can generate several dozen lawsuits or demand letters in a day’s work.

Easy settlement cash

Plaintiffs and their attorneys generally don’t plan on taking their cases to court. Rather, the goal is to wrangle a settlement out of the defendants. Typically, the payoff runs from $5,000 to $20,000 per case.

Meanwhile, inconsistent opinions in federal courts have not eased the pressure on private businesses to pay cash settlements with plaintiffs. One law firm reports that ADA website lawsuits have tripled in just four years, with most filed in New York, Florida, and California. 

Not only can private attorneys file civil lawsuits, but the U.S. Department of Justice and state attorneys general can also bring causes of action for alleged infractions of both the ADA and similar state laws respectively.

What is ADA website compliance?

One obstacle for website publishers and developers is a lack of reliable consensus as to standards for accessibility for the disabled.  

To date, the general reference has been the Web Content Accessibility Guidelines (WCAG), provided by the Web Accessibility Initiative of the World Wide Web Consortium, the international standards organization for the internet.

In July 2023, the U.S. Department of Justice proposed that WCAG 2.1, Level AA become the technical standard. As of this writing, the period for public comment is closing, and the DoJ has yet to issue a final ruling.

Generally, among web developers and accessibility specialists, an accessible website offers these features:

• An ability for a visitor to turn off flashing content, a trigger for an epileptic seizure for some users
• Captions for audio content for the hearing impaired
• Compatibility for screen readers, devices that allow the sight impaired to translate text on a web page into spoken words
• Flexibility for altering colors on web pages for color-blind users
• Ability to change font sizes and color contrasts for the sight impaired
• Option for navigating a website with only a keyboard rather than a mouse

Inconsistent court opinions

To date, federal court rulings have been all over the place on both whether the ADA applies to all websites or only certain kinds of websites and who has standing. Key legal issues:

1. Are all businesses with websites covered under the ADA as places of “public accommodations”?

In an early case heard in the Eleventh Circuit, Gil v. Winn-Dixie Stores, 257 F. Supp. 3d 1340 (S.D. Fla. 2017), the U.S. Court of Appeals reversed a lower court ruling by holding that a website is not a “place of public accommodation” under Title II of the act. 

The Eleventh Circuit opinion was followed by findings from the Third, Sixth, and Ninth circuits – all holding that the ADA’s mandate applies to digital services with a “nexus” to a physical place of public accommodation. Websites lacking connections to bricks-and-mortar locations in these jurisdictions are otherwise exempt.

However, federal courts in the First, Second, and Seventh circuits have said any website can be a place of public accommodation regardless of whether there is a “nexus” between the website and a physical location. 

The U.S. Supreme Court has thus far declined to resolve the split among circuit courts. When the defendant appealed a Ninth Circuit opinion in Robles v. Domino’s Pizza, LLC, 913 F.3d 898 (2019), the Court refused to grant certiorari, leaving open the question .

2. What does a plaintiff need to show to establish legal standing?

In the landmark case Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992), the U.S. Supreme Court created a test for legal standing in an evaluation of whether a plaintiff has suffered “an injury in fact” which is concrete, particularized, and actual or imminent. 

In addition, there must be a causal connection between a defendant’s conduct and the plaintiff’s injury, and it must be likely that a court’s decision will redress the injury.

At issue is whether standing requires an ADA website plaintiff to actually intend to become a customer of a business. The question has been at the heart of Acheson Hotels, LLC v. Laufer, 601 US _ (2023), originally brought in 2020 by a disability rights activist in Maine federal court.

Lawyers for Acheson Hotels, operator of Coast Village Inn and Cottages in Maine, said in court papers that the wheelchair-bound plaintiff, Deborah Acheson, has filed more than 600 lawsuits against small hotels and inns. 

Acheson claimed that the costs of litigating such cases can bankrupt defendants. Moreover, Acheson asserted that Laufer failed to show any injury, thereby failing to establish standing. The heart of Acheson’s case was that without intent to become a consumer, Laufer and others act purely as “testers” rather than as a truly prospective customer of a business. 

In rebuttal, Laufer held that the ADA protects anyone who is disabled as subject to discrimination. Without testers such as herself, disabled persons suffer a “stigmatic harm” as unwelcome by certain businesses.

Where to now for ADA website compliance?

Bottom line, if the Court had held for the Maine hospitality appellant, the era of serial ADA website lawsuits would likely have slowed to a crawl. In this scenario, for a plaintiff to successfully prove standing, he or she must demonstrate with concrete evidence an intent to purchase. 

Imagine, for example, the difficulty of a plaintiff claiming discrimination due to the inability to schedule an appointment on a medical practice’s website with a primary care physician or on a private-injury law firm’s website in another time zone. Given the ubiquity of PCPs and PI firms, the logistical challenge might well become too high a hurdle to serial claimants.

But had the court decided the other way by requiring all websites to comply with the ADA, the recent wave of serial lawsuits by testers against website publishers might have turned into a tsunami. 

Instead, the Court dismissed the case as moot, with Justice Amy Coney Barrett writing that the case was no longer justiciable because the plaintiff – Florida resident Deborah Laufer, who is visually impaired and uses a wheelchair – requested dismissal because a lower court sanctioned her lawyer for violating professional conduct rules “hundreds of times.” Laufer told the Court she would file no more ADA suits.

However, don’t count the nation’s highest tribunal out on settling the question of ADA applicability to websites. In her opinion, Justice Barrett wrote that, “we might exercise our discretion differently in a future case.”

Disclaimer

The information on this website does not constitute legal advice and is not guaranteed to be correct, complete, or up to date. The information is provided as is without warranty of any kind, either express or implied, including but not limited to, the implied warranties of merchantability, fitness for a particular purpose, or non-infringement. Vanguard Communications authorizes website visitors to view, store, print, reproduce, copy, and distribute any pages for non-commercial purposes. In consideration of this authorization, you agree that a) any copy of these documents shall retain copyright and other proprietary notices herein, and b) this disclaimer is included with any distribution.