2023 Digital Accessibility Lawsuits: More of the Same

2023 is once again shaping up to be a record year for digital accessibility lawsuits. There were 8,200 federal lawsuits under the Americans with Disabilities Act (ADA) Title III, 3,086 of which were focused on digital accessibility. An additional 1,519 ADA-related lawsuits were filed at the state level. Without formal, written regulations clearly explaining what is required for digital accessibility, organizations continue to leave their content inaccessible. As we look back on 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 933 digital accessibility lawsuits in 2023 had an accessibility “plugin” 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– 73% of lawsuits have been filed against companies that bring in less than $25M in revenue in 2023. Why this trend? According to Usablenet, “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. Additionally, New Jersey and Wisconsin had no lawsuits in 2022 but had 33 and 11, respectively, in 2023. 

California digital accessibility lawsuits dropped somewhat in 2023 due in part to a recent California Supreme Court decision that requires that defendants in digital accessibility cases have a nexus to a physical place of public accommodation. According to Seyfarth Shaw, without the financial incentive from the mandatory $4,000 in damages for Unruh cases, California has become a “less attractive venue for plaintiffs seeking to recover damages which cannot be obtained under the ADA.” They also mention that one particularly aggressive digital accessibility plaintiff’s firm dissolved a few years ago, resulting in fewer filings.

While California has decreased, New York and Florida lawsuits have continued to grow. New York state and local laws both allow plaintiffs to recover damages for digital accessibility violations. Florida has nearly doubled the number of lawsuits from 58 in 2022 to 119 in 2023. This increase is somewhat surprising as one of the largest filing plaintiff’s law firms is no longer filing cases–one of their attorneys faced disciplinary action and a temporary suspension. 

Why aren’t companies addressing digital accessibility?

Digital accessibility lawsuits began skyrocketing in 2018, and have increased significantly year over year since then. Some companies have even failed to make their resources accessible after the first lawsuit, resulting in more than 700 lawsuits being filed against companies that have already faced a lawsuit in the past. 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 are 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 maintained a firm stance 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. According to the DoJ, 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 published in August of 2023 and the public was invited to comment until the comment period closed in October 2024. It is currently delayed in the Office of Information and Regulatory Affairs (OIRA) as of January 2024 with no firm legal deadline. 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) as recommended by the DoJ and U.S. courts. 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.”