i3 | January 18, 2022

Combatting Misuse of the ADA

Michael Petricone

Now more than ever, technology and accessibility go hand in hand. New technologies for persons with disabilities have exploded, ranging from physical products that promote accessibility to the boundary-breaking power of the internet and online services.

The Americans with Disabilities Act, which became law in 1990, is one of America’s landmark public policy achievements. By prohibiting discrimination and extending civil rights to persons with disabilities, the ADA changed our society for the better. The law seeks to ensure equal access to employment, services of public entities and public accommodations for private entities.

The Impact of the ADA

Thanks to the ADA, persons with disabilities gained greater opportunities in employment, housing, public transportation, and physical access to all public and many private spaces. The ADA has revolutionized our society: persons with disabilities have made huge advances in quality of life, and are voting, working and furthering their education in historic numbers.

While the ADA became law before widespread use of the internet, some courts have ruled that the ADA requirements apply to websites and mobile applications. Unfortunately, unscrupulous trial lawyers are now misusing the ADA to file lawsuits against vulnerable small businesses and startups. Their latest tactic: alleging that business websites are violating the ADA because they fail to enable people with visual or other disabilities to access their services.

The target businesses are in a near-impossible position. There is currently no requirement to inform a company of violation before filing the lawsuit, so by the time the company finds out about the alleged problem, litigation has already begun. More, the plaintiff does not even need to actually be harmed by the barrier, as long as he alleges, he could not access the accommodation.

Finally, businesses have no legally recognized standard to ensure that a website is ADA compliant. The U.S. Department of Justice (DOJ) has not put forward website accessibility rules, and the Federal Communications Commission (FCC) regulations under the 21st Century Communications and Video Accessibility Act (CVAA) do not apply. Many businesses rely on the World Wide Web Consortium’s Web Content Accessibility Guidelines (WCAG) as the default standard for website accessibility, but following the WCAG guidelines does not provide a safe harbor from litigation.

CTA is working hard in Washington to ensure that the Americans with Disabilities Act works to benefit persons with disabilities, not opportunistic trial lawyers.

What Can be Done?

Businesses targeted by ADA website lawsuits are caught between a rock and hard place: determining whether a website is “accessible” is fact-intensive inquiry which often results in lengthy litigation. According to a report by UsableNet Inc, website accessibility lawsuits began growing rapidly every year since 2016. They predict more than 4000 such lawsuits will be filed in 2021, a 64% jump over the previous year. Smaller businesses are in the crosshairs: companies with revenue below $50 million were the targets of two-thirds of the lawsuits filed in 2021.

Thankfully, policymakers in Washington are addressing this issue. A bipartisan group in Congress has introduced a bill called the Online Accessibility Act (HR 1100). This bill codifies the principle that a website that is not accessible violates the ADA. It also requires plaintiffs to notify the website owner of the alleged ADA violation and allows them 90 days to fix the website before the plaintiff can file a complaint.

CTA is working hard in Washington to ensure that the Americans with Disabilities Act works to benefit persons with disabilities, not opportunistic trial lawyers. We also continue to promote innovative accessible technology through CES, CTA advocacy efforts and the CTA Foundation.

i3 magazine January/February 2022 cover

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