2023 Digital Accessibility Lawsuits: More of the Same

2023 is once again shaping up to be another record year for digital accessibility lawsuits. Without formal, written regulations clearly explaining what is required for digital accessibility, organizations continue to leave their content inaccessible. At halfway through 2023, the biggest takeaway this year is that nothing is new–lawsuits continue to increase for the same reasons in the same places.

Common trends

Failed accessibility attempts

A recent report uncovered that nearly 20% of digital accessibility lawsuits in 2023 had a generic accessibility “plug in” or “overlay” that guaranteed accessibility for an entire website. Many companies, including those that faced lawsuits, are being defrauded by companies telling them that one line of code will instantly make their websites accessible. But generic “one-size-fits-all” automated solutions are almost always ineffective at identifying nuanced elements of a website, so people with disabilities still can’t access the information. Automated solutions need to be specifically tailored to resolve accessibility issues accurately.  

Smaller companies targeted

It’s not just big companies that are targeted by lawsuits– so far this year, 77% of lawsuits have been filed against companies that bring in less than $25M in revenue. Why this trend? According to the publication, “Many of the largest companies have already been sued and have accessibility programs, so plaintiffs are naturally progressing to focus on smaller companies.” Since 2018, 406 of the top 500 eCommerce websites have faced lawsuits.

3 states leading the pack

As has been the case for the last several years, significantly more digital accessibility lawsuits are filed in New York than anywhere else in the United States, followed by California and Florida. New York, California and Florida are  where the plaintiffs are located; targeted companies are  located all around the country.

Why aren’t companies addressing digital accessibility?

Digital accessibility lawsuits began skyrocketing in 2018, and have increased significantly year over year since then. Why aren’t companies taking the hint and making their digital resources accessible? 

Making all digital resources accessible can take a lot of time, staffing, and expense, and many companies might assume there’s no direct return on investment. However, with nearly 25% of the population having some form of disability, companies could be leaving out that entire demographic if they fail to make their content accessible. 

Some companies may also neglect digital accessibility because of the lack of federal regulations. However, the Department of Justice (DOJ) has consistently held that the ADA does apply to websites and digital resources. According to the DOJ’s  recently published Guidance on Web Accessibility and the ADA, “the Department has consistently taken the position that the ADA’s requirements apply to all the goods, services, privileges, or activities offered by public accommodations, including those offered on the web.” 

The ADA does not specify exactly what makes an accessible website, and some companies worry that they won’t “correctly” make their content accessible. ADA is intentionally left vague so companies have flexibility as to how they want to make their content accessible. However, to help reduce the number of digital accessibility lawsuits and provide clear, consistent rules, the DOJ announced they would be publishing a Notice of Proposed Rule Making (NPRM) in June 2023.The NPRM was never published and is currently delayed in the Office of Management and Budget (OMB). Without clear guidance, many companies continue to push digital accessibility to the back burner, leaving themselves open to lawsuits and excluding people with disabilities. Specific regulations would allow companies to confidently make their content accessible, reach everyone, and reduce lawsuits.

Clear guidance through WCAG

As U.S. companies continue to wait for clear federal digital accessibility regulations, they should follow the widely-accepted international standard for accessibility, called Web Content Accessibility Guidelines (WCAG). Many U.S. courts have referred to WCAG in published decisions on digital accessibility lawsuits, and following these guidelines will ensure websites are accessible. WCAG applies to all types of digital content, from web pages to videos to PDFs. 

Need help making your PDFs accessible? Contact us!

Nina Overdorff

Nina comes to Equidox with years of sales and marketing experience from a variety of industries and holds a BS in Language Arts Education. Nina has a passion for words, storytelling, and information, which she believes everyone should have access to regardless of ability. After spending time as a teacher with a blind student, she became much more aware of the limitations and abilities of web accessibility, and how essential it is to those experiencing disabilities. “Being able to access information equally ensures that everyone has an equal opportunity for education, employment, and success in life.”