During the first half of this year, the number of website accessibility lawsuits in the United States has been rising. Retail continues to be the target of such litigation, according to an analysis of cases filed through June 2021.
According to an analysis from UsableNet Inc., the number of web accessibility lawsuits is on track to reach 4,195 in 2021. That would be up 19.8% from 3,503 in 2020. UsableNet’s full-year projection includes 2,092 such lawsuits filed during the first half of 2021. According to the report, retailers received 73.7% of digital accessibility lawsuits filed in the first half of 2021.
In 2020, UsableNet, a website accessibility vendor, found plaintiffs filed 3,503 digital accessibility lawsuits. That was an increase of 21.2% compared with 2,890 in 2019. Also, 77.6% of digital accessibility lawsuits filed in 2020 cited retailers.
The UsableNet study analyzed digital accessibility-related lawsuits involving websites, mobile apps, or video content subject to a claim in federal courts under theAmericans with Disabilities Act (ADA) or California state courts under the state’s Unruh Civil Rights Act. The ADA, signed into law in July 1990, prohibits discrimination based on physical or mental disabilities. Similarly, the Unruh Act, enacted in 1959, bans discrimination in California based on sex, race, color, religion, ancestry, national origin, age, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status in California.
Those laws do not spell out detailed regulations for retailer websites and other consumer-facing sites. However, courts have held that websites must be “meaningfully accessible” to all users. That includes those who are blind or visually impaired, have seizure disorders or cope with attention deficit hyperactivity disorder (ADHD). For example, retailers might accommodate blind or visually impaired shoppers by making their sites compatible with screen-reading technology. For those with seizure disorders, merchants could offer a website version that eliminates flashes and reduces color. Users with ADHD could get the option to see focused content with fewer distractions than the site otherwise would have.
The analysis finds that 369 (74%) of retailers ranked in the Digital Commerce 360 Top 500 faced ADA-based digital lawsuits since 2018. During the first half of 2021, Plaintiffs filed 68 (14%) suits against the Top 500 retailers with such lawsuits. But plaintiffs are not focusing only on large retailers. According to UsableNet, smaller companies now represent the lion’s share of those sued in web accessibility lawsuits cases.
Of the 1,664 cases filed in federal courts from January through June 2021, 1,115 (67.0%) targeted companies with less than $50 million in annual sales. Plaintiffs filed 549 (33.0%) cases against companies with more than $50 million in revenue. That’s a notable change compared with the first half of 2020. At that time, companies with more than $50 million in revenue faced 56.9% of federal web accessibility lawsuits.
“We would point to two main reasons that smaller companies have come to face the lion’s share of lawsuits,” says Jason Taylor, chief innovation strategist at UsableNet.
First, he says, plaintiff law firms are filing more lawsuits, which means they must widen the pool of companies they review. Second, ADA attorneys tell UsableNet that medium- to small-size businesses are less likely to fight a lawsuit and more likely to settle and settle quickly, Taylor says. “This is likely because smaller companies may not have the same resources as a larger company does, like in-house counsel, to fight a lawsuit or claim,” he says.
A survey of more than 500 U.S. business leaders, managers, website designers and developers commissioned by accessibility vendor AudioEye sheds light on why some companies are reticent about addressing website accessibility on their websites. The top concerns cited by those surveyed were the potential cost (73.6%), the time it would take to make a site accessible and legal compliance issues (66.9%). In addition, 51.6% of survey respondents falsely believe making an existing website accessible requires a complete redesign.
AudioEye hired a third-party partner to survey in March 2021. All respondents were evaluated using screening questions to confirm they were familiar with digital accessibility. Respondents were contacted via email with a link to complete the survey questions online. Among those who qualified, 11% had heard of digital accessibility, 39% said they were “fairly familiar” with digital accessibility and 49% said they were “very familiar” with digital accessibility.