ADA website lawsuits a growing problem for retailers

Marisa Harrilchak

It’s that time of year again when families across the country are rushing to complete their back-to-school shopping. And while parents are out at stores, many will notice signs that designate access for shoppers with disabilities – from parking spaces to restrooms to dressing rooms. These requirements are thanks to the Americans with Disabilities Act, a 28-year-old federal law that prohibits discrimination based on disability. Retailers support the goals of the ADA and work to facilitate access to their stores to best accommodate all customers regardless of ability.

While ADA requirements in physical stores are, by and large, easy to understand, the standards are less black-and-white when it comes to online shopping. It is straightforward enough to measure the height of a restroom grab bar to test its ADA compliance. It is far more complex to accurately measure or predict how a specific website will interact with a specific assistive technology and its user. So, as ecommerce grows, retailers are increasingly faced with ADA lawsuits that claim their websites are not accessible, particularly for the visually impaired.

More lawsuits were filed in federal court in the first six months of 2018 than in all of 2017.

Website accessibility lawsuits have already hit a record this year, with retail being the most frequently targeted industry. More lawsuits were filed in federal court in the first six months of 2018 (1,053) than in all of 2017 (814). With legal action skyrocketing, the number of cases so far this year is more than four times the 262 filed in 2016 and nearly 20 times the 57 seen in 2015. Moreover, businesses located in all but 12 states have fallen victim to website-related lawsuits and threats of suits, paying anywhere from $10,000 to over $90,000 to resolve the claims.

What’s driving this issue? Lack of clarity. The ADA was signed into law in 1990, three years before the World Wide Web was officially released to the public. Title III of the ADA – the section under which retailers are being sued – prohibits disability-based discrimination in “any place of public accommodation.” But while the law defines many types of businesses with physical locations as “public accommodations” it makes no mention of non-physical marketplaces like websites. That has led to a patchwork of inconsistent court decisions that attempt to interpret Title III and its reach. At one point the Department of Justice attempted to issue guidance for website accessibility. But the guidance was never finalized, possibly because the DOJ is not granted clear authority under the ADA to promulgate regulations. More recently, the DOJ announced that it would not issue any guidance as part of the Trump administration’s efforts at deregulation.

Retailers are committed to making websites accessible, but this huge spike in litigation diverts resources and drives up the cost of doing business to the detriment of all consumers. As long as there are no clear legal standards for web accessibility under the ADA, retailers will be sued. And as long as retailers continue to be sued, money they could be investing in advanced technologies is being wasted on legal fees, preventing business owners and people with disabilities from reaching their shared goal of creating and maintaining websites that are accessible to all.

Update: Website lawsuits nearly tripled in 2018

Read more about the Americans with Disabilities Act.