When the Americans with Disabilities Act (ADA) was first adopted in 1990, equal access for disabled individuals was largely a question of physical access. ADA claims largely centered around the rights of disabled people to access buildings, job opportunities and critical information as any other citizen would.

Since then, the digital world has expanded enormously, and with it, a whole other infrastructure for Americans with disabilities to navigate. Moreover, given the breakneck pace of technology and web innovation, trying to keep technology ADA-accessible has created some serious headaches for organizations.

Litigation surrounding ADA claims have long been a staple of physical access, but Cole Schotz attorney Scott Topolski noted that these lawsuits are increasingly pushing into the digital realm. “The big trend these days is website lawsuits, the allegation being that the websites are not fully accessible to visually impaired people,” he explained.

Most of these claims, as Topolski noted, stem from blind or visually impaired individuals who cannot get access to services online by using a screen reader, which can narrate the content of websites out loud. A report produced by Seyfarth Shaw found that in 2017 alone, plaintiffs filed 814 federal lawsuits citing inaccessible websites under the ADA.

Seyfarth Shaw partner and report author Minh Vu added that these lawsuits aren't just going away, either. “Plaintiffs have been doing well at resisting motions to dismiss early. Very well,” she said. “What that means is that you're not getting rid of a case early; you're going to end up litigating this issue.”

Thus far, only one of these claims has gone to trial. A Miami federal court decision last year ruled that supermarket chain Winn-Dixie Stores violated a blind customer's rights under the ADA because its website was incompatible with the customer's screen reader software.

Part of the problem lies in the fact that at present, there are no established federal guidelines for how to make a website accessible to disabled individuals. Although the Obama administration recommended that websites adopt the Web Content Accessibility Guidelines (WCAG), developed by the World Wide Web Consortium (W3C), it did not adopt the rules as a formalized regulation. The Trump administration has since formally deprioritized the issue, saying that the Department of Justice (DOJ) would be “evaluating whether promulgating regulations about the accessibility of web information and services is necessary and appropriate.”

Richik Sarkar, member at McGlinchey Stafford, noted that many businesses have waited to take formal action to make their web services accessible to disabled users in hopes that formal rules would be put forth from the DOJ. The DOJ's decision not to issue these guidelines has reignited some conversation among attorneys as to the importance of formal guidelines to begin with.

Sarkar noted that while he's not typically of the mind that unrestrained free markets are always the answer, “This actually is an area where the market will take care of itself.” Technologists and web developers that fail to make their content accessible could lose out on a potential consumer base to a competitor with accessible content. “They have no real interest in excluding everyone,” Sarkar noted.

In Vu's mind, the issue is a little more complicated because of the way that supply chains around websites work. Retailers covered by the ADA often generate their web content through third-party developers, groups that may not be subject to the same regulatory requirements in developing their product. That could make it more difficult for companies to pressure third-party developers to create accessible technology for them.

“The customers don't really have a lot of leverage. Businesses can say, 'Too bad, then don't buy it,'” she said.

But, he added, “I think covered businesses are now having this realization that they need to take action on their websites and digital properties now, because there are not going to be any regulations to come out.”

Figuring out how to take that action could be tricky for some organizations. At this point, Topolski doesn't really see much of a unified strategy from ADA-covered organizations in how to handle these lawsuits. “It is a really fairly new trend, I don't know that there has been any type of dominant response to this,” he said.

Topolski, Sarkar and Vu all suggested that organizations may want to hire web accessibility consultants who can audit and identify potential problems. Even then, however, the rate of change in web design standards can make this issue difficult and expensive for organizations.

“The people who are going to be more at risk are middle market companies, where they don't have the internal resources to maintain these sites,” Sarkar said.

Vu said that these organizations may want to start carving out the resources to address this issue regardless. “Our advice is, the time is here to go ahead and work on making your website accessible. Until your website is accessible, the lawsuits are going to keep coming. The lawsuits are going to keep coming anyway, but then you're in a better position to defend them,” she said.