Web Accessibility Lawsuits: When Asking Nicely Doesn’t Cut It
“I just don’t understand why people sue over accessibility. It only makes people angry about accessibility.”
Anyone in the field of accessibility (either physical or digital) has heard some version of the protest above. It’s often said out of frustration by people who are worried about accessibility lawsuits for their small business or by people who work for a company that’s been threatened with legal action. And it’s understandable. After all, a lawsuit is one of the quickest ways to permanently end friendly relations between two parties.
So why are web accessibility lawsuits not only still happening, but also increasing in frequency every year (source: UsableNet)? If the companies and individuals we want to encourage to embrace web accessibility say that lawsuits only make them less amenable to it, why sue at all?
Lawsuits Are Expensive…
To understand the full story, we have to look at the context in which these lawsuits are happening. Anyone who’s familiar with the US knows that we have become a highly litigious society. There are lawsuits over anything and everything in every level of court in every state.
And winning can be lucrative for plaintiffs. According to a recent report by the US Chamber of Commerce Institute for Legal Reform, lawsuits cost $443 billion in 2020 (the most recent year we have data for). That’s a lot of money up for grabs.
One problem: The system is extremely inefficient. Only 53% of that money actually makes it to the pockets of those suing; the rest goes to covering other costs, like attorneys’ fees and court costs. So if it’s so inefficient and the money doesn’t explain the full story, we’re back to our original question. Why are more and more people—and causes—turning to lawsuits?
…But So Is Good Behavior
Unfortunately, we learned early on that what’s best for a community, region, country, population, or even climate is often not what’s best for companies’ bottom lines.
Perhaps one of the most well known examples of this is the tobacco industry’s predatory advertising practices aimed at young people. Despite hundreds of private lawsuits over damages from smoking-related illnesses, the industry continued to target youth and rake in huge profits without consequence (source: Vox).
But finally, 46 states and the District of Columbia joined forces to sue on the grounds of negatively impacting public health and therefore costing public health systems millions of dollars. On November 23, 1998, the “Tobacco Master Settlement Agreement,” which forced the companies to cease certain advertising practices and pay hundreds of billions of dollars in fines over 25 years, was signed.
The companies were fully aware of the conclusive scientific evidence showing the link between smoking tobacco and cancer and they had heard the overwhelming anecdotal evidence of the harm they were causing, but they continued the harmful behavior until forced to stop. Why? We can only speculate, but the most likely explanation is because they were pocketing billions of dollars.
There are countless other examples of corporations refusing to stop harm or to do good until powerful lawsuits and/or changes to laws force them to conform (the mining industry, the fossil fuel industry, Purdue Pharma and other pharmaceutical companies…). It’s a sad reality of our world today. And unfortunately, like other human rights, companies tend to view accessibility rights only through the lens of their perceived impact on profitability.
The Need for Impact Litigation
So despite the fact that lawsuits aren’t the most efficient, they are still one of the best ways to end harmful practices and to enforce better behavior instead. Even more importantly, they can have other positive and far-reaching consequences as well.
When undertaken for a cause, lawsuits can garner much-needed public attention, as well as be the catalyst for changes to policy and law. When litigation is pursued for this purpose, it’s called “impact litigation” or “strategic litigation.”
Impact litigation actually has a long history of creating change in the US. One of the most well-known cases is Brown v Board of Education, which ended segregation in US public schools. Like with the tobacco industry, the lawsuit was pursued because the entities involved would not budge from their positions, regardless of how much pleading and begging and asking nicely was involved.
And this is still playing out today. When large entities like corporations or governments refuse to change and existing laws fall short, strategic lawsuits can be the catalyst for creating change and forcing policies to change much faster than they otherwise would.
Enter the ADA
The Americans with Disabilities Act (ADA), which granted equal access and equal treatment to people with disabilities, was signed in 1990 after decades of lobbying, rallying, protests, and—you guessed it—strategic lawsuits. For the first time, the Disabled community was a protected class under federal law, and public spaces were now required to make certain accommodations in order to be accessible. Finally, equal access for all!
That is, until the internet.
When the law was passed, the internet was not in widespread use, and its importance in our lives 3 decades later was inconceivable at the time. Therefore, the ADA’s regulations extensively cover physical accommodations, but never mention digital ones. Fast forward to 2023, and the ADA has not been amended to specifically include digital spaces or to explain what accommodations should be made for accessibility.
Instead, the Department of Justice (DOJ) has issued guidance on web accessibility and how it applies to public businesses. Unfortunately, this guidance is not specific—in fact, it specifically states that “businesses…have flexibility in how they comply with the ADA’s general requirements of nondiscrimination and effective communication”—and it’s not a regulation. (Note: The ADA covers other regulations for government entities, which we did not cover here due to our focus being businesses in the private sector.)
Because of that, businesses have taken vastly different interpretations of how to make their websites accessible, and there are no set standards they must legally follow. Not surprisingly, this lack of clarity doesn’t exactly encourage businesses to prioritize accessibility. It’s similar to trying to build a house to code without knowing what code is!
So Do Accessibility Lawsuits Work?
In 2006, Target became the first corporation to be sued for their website’s inaccessibility (source: Disability Rights Advocates). The National Federation of the Blind (NFB) joined three blind plaintiffs in suing the company, and the case was ultimately settled. But the settlement was considered a huge win for accessibility and set the first precedent for the ADA being applied to websites.
Since then, lawsuits over web accessibility have steadily increased, and according to UsableNet’s 2023 Mid-Year Digital Accessibility Lawsuit Report, “81% of the top 500 e-commerce retailers have received ADA-based digital lawsuits since 2018.”
This is important for one huge reason: Despite the precedent being set back in 2006, many companies have continued to ignore web accessibility. (Of course, there are exceptions to this, and we want to applaud and celebrate all companies who prioritize and even champion digital accessibility!) It’s only the lawsuits that finally require them to make their websites accessible.
So do accessibility lawsuits work? Yes and no—not yet, anyway.
Yes, the lawsuits clearly give legal grounds for forcing retailers and businesses to make their websites accessible. But as of this writing, they have yet to bring enough attention to web accessibility to have new laws and regulations enacted. The ADA still hasn’t been amended to establish a set of standards (that is, minimum requirements) for digital accessibility.
And because of this lack of clarity, it seems that businesses continue to either ignore accessibility altogether or put as little effort into it as possible. For example, luxury department store Nordstrom has been sued at least 4 times since 2017 over its various websites’ accessibility (2017, 2019, 2020, 2023), with the lawsuits all alleging similar accessibility problems.
So until better standards and regulations are established, or until businesses voluntarily elect to prioritize web accessibility, advocates will continue to be forced to utilize strategic lawsuits to ensure that the web is equally accessible to everyone.
The Ugly Side of Litigation
But please don’t misunderstand us here: We wish it wasn’t this way. Despite impact litigation’s ability to create societal change, it’s still litigation. And litigation, as we learned, is inefficient, not cost effective, and can often turn nasty.
One recent example of this is a lawsuit filed by AudioEye, an accessibility company that provides a piece of software often referred to as an “overlay,” against accessibility rights advocate Adrian Roselli (source: Law Office of Lainey Feingold). In it, AudioEye accuses Roselli of libel and a smear campaign against their company due to his opinions on overlays in general and on AudioEye’s specifically (source: Adrian Roselli).
Overlays are pieces of code that are applied over the existing code on the website (hence the name) to supposedly make a website more accessible. Companies that provide this code claim that it’s a scalable way of quickly remediating the most common accessibility issues, but Disabled users and accessibility advocates alike say that they simply don’t work at best or create more accessibility issues at worst (source: Overlay Fact Sheet).
Considering that the users AudioEye claims to serve highly dislike its product, and considering that Roselli is just one of many who have spoken out about overlays’ problems, this lawsuit appears to be what’s known as a SLAPP, or Strategic Lawsuit Against Public Participation. According to Anti-SLAPP.org, this type of suit “chills free speech and healthy debate by targeting those who…speak out on issues of public interest. SLAPPs are used to silence and harass critics by forcing them to spend money to defend these baseless suits.”
It remains to be seen how this lawsuit will resolve, but it clearly demonstrates the ugly side of our litigious society. This “you sue me, I sue you” mentality only widens rifts and alienates the very parties who should be working together. If we want to create a more equitable and accessible web, we need to find common ground and invent new ways of moving forward without lawsuits, like attorney Lainey Feingold has through what she calls “structured negotiation, [which is] a dispute resolution and collaboration strategy that avoids lawsuits, focuses on lasting change and relationship-building, and has been used to advance accessibility for more than a quarter century.” (Learn more in her book Structured Negotiation: A Winning Alternative to Lawsuits.) Imagine if, instead of retaliating, AudioEye had taken the time to listen to its critics and ultimately create a better product (and therefore increase its profitability!).
Changing the Landscape
So much of this could be avoided, though. Two things could make a huge difference: 1. Businesses that don’t just prioritize accessibility, but become accessibility innovators who champion the cause, thereby holding other businesses to a higher standard; and 2. Regulations that standardize accessibility for all digital platforms and adapt as quickly as the technologies do.
Thankfully, the European Union (EU) is leading the way with its 2019 European Accessibility Act (EAA). The law, which becomes enforceable in June 2025, requires businesses based in the EU or whose audience is based in the EU to meet certain web accessibility standards (source: Forbes). And because many US-based companies do business in the EU, it’s making a difference in the US too.
On the state level, many bills have been introduced to increase both physical and digital accessibility, as well as to increase liability for inaccessible websites (source: Deque). Federally, the Communications, Video, and Technology Accessibility (CVTA) Act, which would “ensure [that] individuals with disabilities have equal access to mainstream communication platforms and the technology services needed to participate in professional, educational, recreational, and civic spaces,” has been reintroduced (source: Ed Markey). Though none are as comprehensive as the EAA, they are a start.
But until these laws and others are passed, until guidelines are more clearly defined, the only meaningful tool left in advocates’ and the Disabled community’s toolbelt is lawsuits.
Web Accessibility Can’t Wait
If simply raising awareness and asking nicely worked, we’d have a fully accessible internet already—or at least we’d be much closer than we are now. Unfortunately, history is rife with examples of corporations, individuals, and even governments who refuse to do the right thing (and even fight back against doing the right thing) until it costs them too much not to. And because that pattern is holding fast when it comes to web accessibility, lawsuits have become the best way to gain offenders’ attention and make it worth their time, effort, and money to make their content accessible.
Making the web fully accessible only grows more imperative yet more insurmountable the longer we wait. Thus accessibility advocates won’t stop using every tool at their disposal—including and especially lawsuits if they’re what works—to ensure that the web is equally accessible for everyone. But there is a better way, and all it requires is for each of us to recognize that what’s good for some is good for everyone, regardless of the bottom line.
