Each year, the number of lawsuits filed under the Americans with Disabilities Act (ADA) seems to grow. 2022 was a record-setting year for federal ADA digital accessibility lawsuits — but that changed dramatically in 2023.
According to an analysis from law firm Seyfarth Shaw LLP, web accessibility lawsuits filed in U.S. federal court dropped by about 14% last year, as compared to 2022. That’s despite guidance from the Department of Justice (DOJ) that clearly defines technical standards for Title II compliance.
An ever-growing number of court decisions have confirmed that the ADA applies to websites. So, what’s the deal? Why are federal courts seeing fewer cases about digital accessibility, and — most importantly — will the trend continue?
Web accessibility lawsuits may be moving to state court
A small number of law firms are responsible for an outsized percentage of the total digital accessibility cases filed each year. As Seyfarth notes, a number of those firms began filing state-level cases in New York, New Jersey, and Pennsylvania over the last year.
State-level cases are more difficult to track. It’s therefore possible that the total number of web accessibility cases did not meaningfully decrease in 2023 — the litigation simply moved to state courts.
For plaintiffs, state courts may offer advantages over federal courts:
- A growing number of states have introduced digital accessibility laws with more specific technical standards than the ADA. That may make it easier to prove that accessibility barriers are illegal.
- Some state laws allow plaintiffs to sue for damages, which isn’t possible under the ADA. California’s Unruh Act, for example, allows for monetary damages of up to $4,000 per offense.
- Some states have case histories that might make litigation strategies more straightforward.
- City digital accessibility laws may also apply in state-level litigation. New York City, for example, prohibits discrimination in employment, housing, and public accommodations via the New York City Human Rights Law (NYCHRL).
To be clear, this is an assumption — while we know that the number of federal web accessibility lawsuits have decreased and state-level cases have increased, we can’t say that all lawsuits have simply moved to state court.
Related: Why New York Leads the U.S. in Digital Accessibility Lawsuits
Digital accessibility awareness seems to be growing
Fortunately, it’s likely that federal lawsuits are dropping for another reason. More businesses than ever are paying attention to digital accessibility, and the internet is becoming a friendlier place for people with disabilities — albeit slowly.
In 2024, WebAIM’s (Web Accessibility In Mind) annual audit of the home pages of the internet’s top 1 million websites showed a slight decrease in the number of pages with detectable accessibility barriers.
By “slight,” we truly mean slight: 95.9% of tested pages failed to conform with the Web Content Accessibility Guidelines (WCAG) 2.0 Level AA. In 2023, that number was 96.3%.
Over the past five years, the number of pages with detectable WCAG failures has decreased by about 1.9%. That’s a small change, but it’s a move in the right direction — and since WebAIM focuses on the internet's most visited websites, it’s quite possible that conformance has increased more significantly for less well-known properties.
Litigants may have trouble finding targets for web accessibility lawsuits for other reasons:
- Many businesses that can afford to pay or settle cases have already been sued. While businesses can be sued multiple times over web accessibility issues, those organizations are also more likely to push back against successive or concurrent lawsuits.
- Some recent court decisions have disincentivized certain digital accessibility lawsuits. For example, in late 2022, the California Court of Appeals ruled that online-only businesses are not covered by Title III of the ADA.
- There’s less technical ambiguity regarding what an “accessible website" is. The Department of Justice (DOJ) has established WCAG 2.1 Level AA as the technical standards for Title II compliance, and a Title III rule may be on the way.
Related: What Factors Affect Your Chances of a Web Accessibility Lawsuit?
For businesses, ADA litigation remains a serious concern
Web accessibility lawsuits may be dropping, but the risk of litigation remains high — particularly for businesses that ignore their responsibility to users with disabilities.
Fortunately, the best practices of accessibility are fairly straightforward. Following WCAG improves compliance, and more importantly, it makes your website more useful for all visitors. Accessibility can improve user retention, increase brand loyalty, and attract more traffic through improved search engine optimization (SEO).
To learn more about business requirements under Title III, download the Essential Guide to ADA Compliance for Websites or send us a message to connect with an accessibility expert.
