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Bill Dengler is trying to become an Italian citizen. He has all the documents ready to go. But Mr Dengler, an American software engineer who was born fully blind, cannot make an appointment with the Italian consulate in San Francisco. Its booking system uses a colour-based calendar, which is not legible to his screen reader, a device that delivers a website’s content in audio form. And, perhaps because slots fill rapidly, rules prohibit him from hiring someone to make the appointment on his behalf.
What are Mr Dengler’s options? This being America, he could, of course, sue. The government largely relies on private citizens and their obliging lawyers to enforce the Americans with Disabilities Act (ADA), the federal law passed 33 years ago to protect the civil rights of disabled people. This deputisation has resulted in tonnes of litigation, some of which has done more for lawyers than for disabled people. In the past five years, website-accessibility lawsuits have surged to comprise about a fifth of such claims. According to UsableNET, a company that both tracks litigation and sells services to help clients prevent it, plaintiffs have filed more than 16,700 digital-accessibility lawsuits in state and federal court since 2018.
The ADA only permits plaintiffs to recover attorneys’ fees. But New York and California, where the vast majority of cases are brought, allow plaintiffs to tack on state-level claims to their federal cases and sue for damages. The financial incentives for both plaintiffs and lawyers are hard to ignore. “I think that this was a gravy train that people jumped on,” says David Stein, who defends businesses. The country’s most active law firm, according to UsableNET, appears to have been founded in 2020; the fourth-most-prolific opened in 2021. Serial plaintiffs abound. In a single month in 2018 a blind man in Queens filed 43 lawsuits. In the year from January 2022, six people, represented by one law firm, brought 435 suits. The most active plaintiffs in 2021 and 2022 filed over 100 lawsuits each, according to Accessibility.com, which also tracks litigation.
While the ADA orders businesses to add wheelchair ramps, it has never set out precisely how they should design their websites—it simply mandates “effective communication”. Nearly 5% of America’s population is blind or has low vision (uncorrectable with glasses). Making the web broadly usable was always the goal: at the First International World Wide Web conference in 1994, Tim Berners-Lee, the father of the internet, called upon pioneers to prioritise “this feeling that the web is totally accessible to everybody”.
By 1995 a group of organisations started what eventually became the Web Content Accessibility Guidelines. These are now about 50 technical recommendations, regularly updated, that prescribe minimum standards for colour contrast, keyboard operability (visually impaired people use the tab key, rather than a mouse) and alt-text (written descriptions of images). They have not been adopted by the ADA, but are frequently cited in plaintiffs’ lawsuits.
Some of those standards meaningfully ease the burden on disabled site-goers; others are less critical. But the lawsuits tend not to differentiate. Complaints can hinge on “technical non-conformance”, says Kris Rivenburgh, founder of ADAcompliance.net. Since virtually all settle before they reach trial, judges rarely weigh in on whether they created a barrier to access.
On occasion, the Department of Justice (DoJ) has intervened directly. It brought enforcement actions, for example, against pharmacy giants Rite Aid and Kroger for—recalling Mr Dengler’s consulate conundrum—creating inaccessible covid-19 vaccine portals. The private lawsuits, meanwhile, tend to target smaller companies reporting annual revenue under $25m; and most are retailers, not purveyors of education or health-care services.
The spectre of litigation may help push up standards. But Jeffrey Gottlieb, a plaintiffs’ attorney in New York, frankly admits he is not so sure that litigation has had a broader “deterrent effect”. Others speculate that the lawsuits have even stymied progress, “causing corporations to throw up their arms and say I’m going to get sued anyway”, as Mr Stein puts it. Jason Taylor, the head of innovation at UsableNET, argues that the profusion of lawsuits can indeed take credit for “significantly” improving accessibility. Still, he admits, “to be on the cynical side”, large companies may believe that settling lawsuits is “cheap compared to doing it the right way”.
The wrong way is with overlays, plug-ins that show customisable website interfaces to disabled users, promising to help companies achieve accessibility without overhauling code. These interfaces often interfere with the technology blind people already use, and they do not prevent litigation: UsableNET reports that over 400 companies using overlays were hit with lawsuits in the first half of 2023. Experts say there is no substitute for auditing sites, designing fixes and manually testing them.
Two things could curb lawsuits, says Rob Thorpe, a defence attorney. Plaintiffs could be required to issue notice, providing the offending business the chance to fix the problem before suing. The other would be for the DoJ to give more clarity on the requirements for websites, a move that seemingly everyone supports. Both have the advantage of benefiting the real parties on either side, rather than those profiting from the confusion. ■
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