ADA Title III Lawsuits are Real and Multiplying

The numbers are sobering. According to Seyfarth Shaw LLP, if ADA Title III federal lawsuit numbers continue to be filed at the current pace, 2018’s total will exceed 2017 by 30%, caused largely by the continued growth of website accessibility lawsuits.

ADA (Americans with Disabilities Act) Title III lawsuits, which concern website accessibility, were filed more often in the first six months of 2018 than in all of 2017. There were more than 1,000 such lawsuits in the first six months of 2018, compared to just over 800 in all of 2017. If filings continue at this rate, there could be more than 2,000 website accessibility lawsuits filed in federal court for 2018.

With 2018 more than half over, one thing is very clear – The number of ADA court cases keeps growing unabated. According to a recent Forbes article, businesses continue to find themselves as defendants in cases claiming that business websites discriminate against disabled people because the websites are not legally “accessible,” for example, to deaf and blind people who use the Internet.

Under the ADA, most businesses are covered by Title III. Local and state government agencies, plus hospitals and certain clinics are covered by Title II. The law and standards under Titles II and III are different, with ADA Title II applying more broadly than Title III and covering more organizations and their programs and services.

In the increasing spate of lawsuits, several industries in particular are being targeted for their websites. One industry, banking and financial services, is a big focus in 2018 for people claiming website accessibility discrimination. The medical field is feeling it too.

Determining the methods to use in communicating with someone who is deaf, hard of hearing, blind, or low vision will depend upon each individual and each situation. Website accessibility, which encompasses the concept of Auxiliary Aid, is now available in various formats, and more communication methods are being developed all the time.

According to the U.S. Department of Justice, the ADA uses the term “auxiliary aids and services” (“aids and services”) to refer to the ways to communicate with people who have communication disabilities.

For people who are blind, have vision loss, or are deaf-blind, website aids and services include providing information electronically for use with a computer screen-reading program or an audio recording of printed information.

What is adding to the confusion is the fact that the U.S. Department of Justice has yet to release long-promised clarifications on the ADA that would help the courts handle lawsuits that claim businesses’ websites are not handicap-accessible. The DOJ was expected to release sorely needed clarifications to Title III in 2016 but pushed the release date to 2018, and we are still waiting. The law originated in the 1990s and does not take into account our new digital reality. It was written before the internet was widely used so only mentions businesses’ brick-and-mortar locations. Until the law catches up, litigation is the way forward.