Over the past five years, businesses with an online presence have been pummeled with lawsuits accusing them of having websites that are supposedly inaccessible to the blind and hearing impaired in violation of the Americans With Disabilities Act (ADA). The number of such cases has gradually climbed to a rate of 10 per day, with over 4,000 cases filed in 2021 (quadrupling the number of such cases filed in 2017). The increase is the consequence of a particular void in the law—the absence of any codified achievable standards explaining what's required to have a certifiably "accessible" website. Serial plaintiffs' lawyers have enjoyed an unfair advantage, allowing them to relentlessly pursue "sue and settle" nuisance lawsuits which disproportionately affect small and mid-market companies with low operating margins.

Targeted businesses, which have aggregately paid out millions of dollars in extortive settlement payments, were eagerly waiting for the U.S. Department of Justice (DOJ)—as the agency charged with issuing regulations to carry out the force and effect of ADA—to use its regulatory authority to provide clarity as to what series of steps can be taken to certify a website's accessibility. To their chagrin, on March 18, 2022, the DOJ effectively abstained and, instead of regulating, issued a nonbinding sub-regulatory statement called Web Accessibility Guidance Under the Americans With Disabilities Act, which purports to describe how businesses can ensure that their websites are accessible. Unfortunately, it does no such thing. The DOJ's ineffective course makes it all the more important for Congress to step in to curb predatory website accessibility lawsuits.

Title III of the ADA prohibits discrimination against people with disabilities in places of "public accommodation." The statute enumerates several accommodations (e.g., restaurants, hotels)—all physical locations—and requires them to meet certain standards of accessibility. Since the ADA predates the Internet, the legislative text imposes no obligation on businesses to make websites accessible. Nevertheless, the DOJ and certain federal courts have stretched the ADA to require websites to be accessible to disabled visitors. While it sounds like a noble goal, the problem is that there is no existing regulatory standard against which to measure accessibility. This stands in sharp contrast to heavily regulated brick and mortar businesses where, for example, every retail store owner knows that it must provide at least one sales counter that is accessible to wheelchair bound customers. Owners also know that to be accessible, a portion of the counter's surface must be at least 36 inches long and no more than 36 inches high. Owners know this because, in carrying out the provisions of the ADA, the DOJ issued the ADA Accessibility Guidelines (ADAAG), which are legally binding standards for determining whether a facility is accessible for ADA purposes. Critically, compliance with the ADAAG acts as a safe harbor for a business sued for ADA violations. A physical business facing an ADA lawsuit can defeat that lawsuit prior to trial if an ADA accessibility expert can certify the premises as ADAAG compliant. The law recognizes, as it should, that plaintiff's lawyers cannot rebut undeniable numbers on a tape measure with their own alternative set of facts.