Seyfarth Synopsis: We predict 2021 will be a very busy year for ADA Title III lawsuits. Here is our take on the types of cases public accommodations can expect to face.
2020 was, by all accounts, an unusual year. The year began with some prolific plaintiffs’ attorneys turning their attention from website accessibility lawsuits to lawsuits claiming that the ADA requires gift cards containing Braille. That gambit has not worked out well for these plaintiffs’ lawyers at the district court level, and the issue is now on appeal to the Court of Appeals for the Second Circuit.
Then the COVID-19 pandemic hit, causing a significant drop in the number of lawsuits filed — stalling the year over year growth in the number of ADA Title III lawsuits filed in federal courts, which peaked in 2019 with 11,053 lawsuits.
The pandemic did result in some new types of ADA lawsuits, however. For example, a handful of plaintiffs sued about having to wear masks in public accommodations.
As the year wore on, the plaintiffs’ bar got back to work and filed a number of new lawsuits in the last quarter of 2020. As in prior years, we are completing our tally of lawsuits filed in federal courts and will know whether the end-of-year surge made up for the decrease in activity over the summer.
No one could have predicted what we have endured as a country in 2020. But one thing is fairly certain: 2021 will be a very busy year for ADA Title III lawsuits. If they remain on current pace, we expect they will likely equal or exceed the 2019 count.
What will those lawsuits be about?
Hotel Reservations Websites. In 2020, several law firms and their plaintiffs filed hundreds of lawsuits against hotels which allegedly did not provide enough accessibility information about their hotels and accessible rooms on their own reservations websites or on online travel agency websites (OTAs) such as Expedia or Booking.com. In the final months of 2020, one California firm filed over two hundred of these suits (most in state court) that will continue to be litigated in 2021. Many hotels are fighting back so we anticipate more judicial decisions about how much accessibility information the ADA actually requires hotels provide on their reservations websites.
Website and Mobile App Accessibility Lawsuits. As in prior years, we expect a significant number of lawsuits alleging violations of the ADA and related state laws based upon the alleged inaccessibility of websites and mobile apps to the blind or people with hearing disabilities. We anticipate that the Eleventh Circuit will finally issue its decision in the Gil v. Winn Dixie appeal, which may provide further guidance on whether the privately-developed Web Content Accessibility Guidelines (WCAG) should be the legal standard for accessible public accommodations websites.
Physical Access Barrier Lawsuits. Lawsuits about accessibility barriers in physical facilities of public accommodations have always been the bread and butter of the ADA Title III plaintiffs’ bar, and we do not see that changing. The barriers we most often see in these lawsuits concern accessible parking, exterior paths of travel, store aisles, restroom elements, and sales counters.
Department of Justice (DOJ) Enforcement Actions and Investigations. The DOJ under the Trump administration was not particularly aggressive in its enforcement of Title III of the ADA and did not appear to pursue website accessibility investigations. We expect much more zealous enforcement in a Biden administration, so businesses should be prepared to face broad investigations into their compliance with Title III of the ADA and potentially onerous demands for remedial action.
What can a place of public accommodation do to mitigate the risk of being a statistic in 2021’s annual lawsuit count? Have an ADA expert review your physical facility and take steps to remove barriers to access. Adopt an ADA policy and train your employees on the law’s requirements to ensure appropriate interactions with individuals with disabilities. Have a digital accessibility expert review your websites and mobile apps to ensure they can be used by people with disabilities. And hotels, be sure you are providing accessibility information about your accessible rooms and common areas on your reservations website and that accessible rooms can be reserved on that website. Also be sure you send accessible rooms and information to some OTAs. It’s going to be a very busy year for ADA Title III matters, but you can take steps to make your business a less attractive target. For a nice overview of common compliance problems, check out our video tips here.