Search results for: new york

Seyfarth Synopsis: NYC recently passed a law requiring that its government agency websites meet accessibility standards.  Other state and local governments may follow NYC’s lead and enact accessibility standards for government agencies, contractors and even public accommodations in the absence of regulations from DOJ.

On March 14, New York City became the first major municipality in the United States to adopt legislation mandating accessibility standards for all of its government agency websites.  Serving a population of over 8 million, the New York City government includes more than 120 agencies staffed by approximately 325,000 employees.  This legislation will have an impact on City agencies, and access for persons with disabilities to those institutions.  It may also have an impact on future website regulations impacting businesses across the country.

Recent NYC Legislation

The website legislation (Intro. 683-A) was among three disability access bills that Mayor Bill De Blasio signed into law on the same day.  In addition to mandating website protocols, the legislation requires that each City agency designate a “disability service facilitator,” and publicize, among other things, the availability of wheelchair access, communication access real-time translation, sign language interpretation, assistive listening systems (e.g. loop technology), and any other accommodations to be made available for all public events.  This sweeping legislative mandate also expressly requires that City government websites display New York State’s controversial “Accessible Icon” (rather than the International Symbol of Access), to designate venues for government meetings or other events that are accessible to wheelchair users.

NYC Must Adopt an Accessible Website Protocol within 6 Months 

The new City law underscores that the Web Content Accessibility Guidelines 2.0 Level AA (“WCAG 2.0 AA”) is increasingly becoming the de facto standard for website accessibility, despite the continued lack of any regulations from the U.S. Department of Justice (“DOJ”) setting a legally-required standard for state and local governments under Title II of the ADA, or for public accommodations (i.e. private businesses) under Title III.

Under the new law, the City must establish a website protocol within 6 months that incorporates: (1) Section 508 of the Rehabilitation Act (“Section 508”); (2) WCAG 2.0 AA; or (3) any “successor” standards.  The Section 508 standard applies to the federal government websites and  consists of a list of 16 requirements that are less rigorous than WCAG 2.0 AA.  But last year the Access Board proposed a rule that would, among other things, adopt WCAG 2.0 AA as the new website standard under Section 508.  Thus, if the City incorporates Section 508 in its website protocol, its agency websites may be subject to WCAG 2.0 Level AA once the final Section 508 regulations are issued.

There are several exceptions to the new accessibility mandate.  The City may adopt protocols that differ from Section 508, WCAG 2.0 AA, or any successor standard, but if it does, it must first consult with experts in website design, conduct a public hearing, and ensure that any differences will still provide effective communication for persons with disabilities.  In addition, the law does not require the “fundamental alteration” of any service, program, or activity, and shall not impose an “undue financial or administrative burden.”

Potential Impact on Businesses

The adoption of accessibility standards for government websites in the most populous city in the United States is significant.  Other municipalities may follow New York City’s lead and pass their own legislation or regulations for accessible features in government websites.  This may result in differing local standards across jurisdictions, which would undermine DOJ’s efforts to implement a comprehensive, national set of rules for website accessibility under Title II of the ADA.

State and local legislators may decide to extend the WCAG 2.0 AA’s reach to the websites of private businesses doing business with state or local governments, or the public, after they are done dealing with their agency websites.  This could follow the model of Ontario, Canada, where the provincial government enacted regulations requiring businesses with 50 or more employees in Ontario to ensure that their websites meet WCAG 2.0 Level A guidelines (and to meet WCAG 2.0 Level AA by 2021).  Based on the progressive legislative and regulatory agenda of the current mayoral administration, we would not be surprised if New York City passed a future law requiring that government contractors or businesses with a presence in the City provide accessible websites.

The bottom line is that if DOJ continues to delay in issuing proposed rules for website accessibility, states and local governments may step into that void and enact rules of their own for government entities, contractors, and even public accommodations.  This could subject businesses to potentially inconsistent rules across jurisdictions.  It is yet another reason why DOJ guidance on this topic is needed now more than ever.

Edited by Minh Vu and Kristina Launey.

CaptureBy John W. Egan

Despite the url (www.adatitleiii.com) and frequent federal focus of this blog, it is important to remember that many states and municipalities have their own disability access laws and regulations with which businesses must comply. Although many state and local requirements are similar to the ADA, this is not always the case.

Usually we’re reporting on a peculiarity of California law, but not today. Effective November 22, 2014, businesses in New York must use the Accessible Icon (depicted above) in new construction and alterations. New York is the first state in the country to adopt this icon, which is distinctly different than the International Symbol of Access (“ISA”) specified in federal ADA Title III regulations.

The New “Accessible Icon”

Created over forty years ago, the ISA is a widely-recognized depiction of an individual in a wheelchair that signifies access for persons with disabilities. ADA design standards, as well as many state and local laws, regulations and building codes expressly require that businesses use the ISA to designate accessible entrances, restrooms, and parking spaces, to name a few.

On July 25, 2014, New York Governor Andrew Cuomo signed legislation designed to phase out the ISA throughout the state. Under the new law and its implementing regulations, accessibility signage installed or replaced on or after November 22, 2014 must use the Accessible Icon. The new law also prohibits the use of the term “handicapped” on accessible signage.

The description of the Accessible Icon in state regulations is taken verbatim from the website of The Accessible Icon Project, an advocacy organization that developed the icon and is lobbying for its adoption in the United States and abroad. Rather than what the regulations describe as a “static” position of the ISA, the Accessible Icon depicts a “dynamic character leaning forward and with a sense of movement.” The forward position of the head, arms pointing backward, and appearance of a wheelchair in motion “broadcast[] an important message that the emphasis should be on the person rather than the disability.”

The regulations make clear that their purpose is to change the accessibility symbol in the state, but make no reference to the fact that federal regulations – with which businesses must also comply – still require the traditional ISA.

New NYS Requirements Conflict with the ADA

New state signage requirements are inconsistent with the 2010 ADA Standards for Accessible Design (and the preceding 1991 Standards), which require that public accommodations use the ISA to designate certain accessible architectural features.

As a result, New York businesses that install or replace accessible signage on or after November 22, 2014 are faced with a Catch-22. They must either display the Accessible Icon and risk violating the ADA, or display the ISA instead and fail to comply with state law.

One way out of this quandary would be for New York businesses to display the Accessible Icon and rely on the equivalent facilitation provision in Section 103 of the 2010 ADA Standards, which allows “the use of designs, products, or technologies as alternatives to those prescribed, provided that they result in substantially equivalent or greater accessibility and usability.” Businesses can take the position that the Accessible Icon constitutes equivalent facilitation under Section 103, and thus its use in lieu of the ISA is permitted. However, the agency responsible for enforcing Title III of the ADA – – the Department of Justice (“DOJ”) – – has not issued any formal guidance on this issue. Moreover, if a lawsuit is filed under the ADA against a business that chose to display the Accessible Icon, the burden of proving that the Accessible Icon provides equivalent facilitation would be on the business.

A Sign of Things to Come?

Will other states follow New York’s lead and replace the ISA with the Accessible Icon? According to The Accessibility Project’s website, the Icon is displayed in municipal buildings in New York City, Cambridge, Massachusetts, and El Paso, Texas, as well as by a number of museums, restaurants, colleges, and hospitals in the United States and internationally. Additional state jurisdictions may well follow suit.

The symbolism underlying the design of the Accessible Icon is unquestionably positive. Its recent adoption in New York, however, has created uncertainty for public accommodations that must comply with both federal and state law.

Edited by Kristina Launey and Minh Vu

Open laptop with law book and gavel setting on the keyboard.

By  John W. Egan and Ashley S. Jenkins

Seyfarth Synopsis: New Kansas law will allow resident businesses to sue ADA website plaintiffs and their counsel over “abusive” litigation to recover defense fees and potentially punitive damages.

The Kansas legislature recently passed The Act Against Abusive Website Access Litigation that, starting on July 1, 2023, will allow Kansas businesses to sue ADA plaintiffs and their counsel to recover legal fees, as well as potentially punitive damages, for “abusive” website accessibility litigation commenced in any jurisdiction.  The new law allows businesses (or the State Attorney General on behalf of a class of businesses) to file claims against plaintiffs and their attorneys in a Kansas court of competent jurisdiction to recover fees incurred in the defense of out-of-state website accessibility litigation, as well as in the Kansas enforcement action.  The new law even authorizes the court to award punitive damages or sanctions not to exceed three times the fee award but does not provide any standards to guide the court in that determination (all these remedies also assume that a Kansas court would have personal jurisdiction over ADA plaintiffs and their law firms).

The new law adopts a “totality of the circumstances” test to determine if an ADA website lawsuit qualifies as abusive, which considers: (1) the number of substantially similar actions filed by the same plaintiff or firm (including those previously-declared frivolous or abusive litigation in the previous 10 years); (2) the defendant’s number of full-time employees and available resources to correct the alleged website access violation(s); (3) whether the jurisdiction or venue is a “substantial obstacle” to defending the case; (4) whether the plaintiff or his or her attorney is a Kansas resident; and (5) the nature of settlement discussions, including the “reasonableness of settlement offers and refusals to settle.” 

If the prospect of punitive damages were not enough of a deterrent for plaintiffs to sue Kansas businesses over website accessibility, the law even includes an available presumption that an ADA website case is abusive.  Specifically, when a business makes good faith attempts to cure the alleged violation after being placed on notice (either in the pleadings or otherwise) within 30 days, then the presumption applies. However, the presumption is unavailable where the business fails to correct the violation within 90 days of being placed on notice, as determined by the court.  This framework harkens back to previous failed legislative initiatives to amend the ADA to mandate that plaintiffs provide businesses with notice of violations and opportunity to cure before a case can proceed. 

The Kansas law will sunset if and when DOJ issues website accessibility regulations – which may well happen in the coming years.

As we have previously reported, website accessibility litigation is now making up a greater percentage of federal ADA Title III cases than ever before.  The litigation is highly concentrated geographically, with 92 percent of federal ADA website cases filed in only three jurisdictions last year: New York, Florida, and California.  Businesses of all shapes and sizes are often targeted, including many businesses domiciled outside of these jurisdictions.  

The Kansas law explicitly states that there are instances where website accessibility litigation “is abused for the primary purpose of obtaining an award of attorney fees for the plaintiff instead of remedying the alleged access violation,” and that “this small minority of cases . . . are almost always filed in another state’s court system against smaller Kansas businesses.”  In fact, according to our data, the entire state of Kansas only had seven ADA Title III accessibility lawsuits in 2022 and none of them were about websites.  It remains to be seen whether the Kansas law will deter website lawsuits against Kansas businesses, and whether plaintiffs, their lawyers, and the U.S. Department of Justice will challenge the law.

Edited by Kristina M. Launey 

By Kristina M. Launey & Minh N. Vu

Seyfarth Synopsis: Plaintiffs filed 3,225 website accessibility lawsuits in federal court in 2022 – a 12% increase over 2021. 

2022 was another record setting year for website accessibility lawsuits filed in federal court.  The total number of lawsuits filed in federal court alleging that plaintiffs with a disability could not use websites because they were not designed to be accessible and/or work with assistive technologies in 2022 was 3,255–360 more than 2021. This 12% increase in the number of lawsuits in 2022 is just slightly lower than the 14% 2021 increase, and matches the 12% increase we saw in 2020.  While these numbers pale by comparison to the explosion of cases we saw from 2017 to 2018 (an increase of 177%), the continued year-over-year increases are still very significant.

[Graph: ADA Title III Website Accessibility Lawsuits in Federal Court 2017-2022: 2017: 814; 2018: 2,258 (177% increase from 2017); 2019: 2,256 (.01% decrease from 2018), 2020: 2,523 (12% increase from 2019); 2021: 2,895 (14% increase from 2020); 2022: 3,255 (12% increase from 2021). *The number of cases that could be identified through a diligent search.]

Especially striking is the fact that, based on our soon-to-be-released overall 2022 ADA Title III lawsuit numbers, these website accessibility lawsuits made up a whopping 37% of the ADA Title III lawsuits filed in 2022, up from roughly 25% in 2021.

The first half of 2022 saw a steady climb from 210 in January to 383 in March, a dip to 164 in April, then spikes at 412 and 448 in May and June. The monthly numbers were more consistent at between 232-273 in July through October, with a dip to 163 in November, before a December finish of 201.

[Graph: Total Number of Website Accessibility Lawsuits Filed by Month (Jan. 2022 – Dec. 2022): Jan. 2021 (210), Feb. 2021 (285), Mar. 2021 (383), Apr. 2021 (164), May 2021 (412), Jun. 2021 (448), Jul. 2021 (232), Aug. 2021 (237), Sep. 2021 (247), Oct. 2021 (273), Nov. 2021 (163), Dec. 2021 (201). *The number of cases that could be identified through a diligent search.]

New York, Florida, and California federal courts continued to be the busiest by far, with Florida regaining the #2 spot and Pennsylvania besting California for the #3 spot.  New York federal courts continued to be bombarded with lawsuits, totaling 2,560 lawsuits in 2022 (continuing an upward trend from 2,074 in 2021, 1,694 in 2020, 1,354 in 2019, and 1,564 in 2018).  Florida was a distant second with 310 lawsuits. California federal courts saw only 126 lawsuits in 2022 (halting the prior upward trend of 359 in 2021, 223 in 2020, 120 in 2019, and 10 in 2018), as shown in the chart below. Pennsylvania passed the 200 mark at 216 in 2022, materially up from 167 lawsuits filed in 2021 and 173 in 2020.  Illinois retained the #5 spot with 19 suits—considerably fewer than its 34 in 2021 and 32 in 2020 and 91 in 2019). Connecticut and Indiana remained in the top 10 with relatively meager numbers at 5 and 2, respectively, and newcomers Massachusetts, North Carolina, and Minnesota beat out Oregon and Wisconsin for the final 3 top 10 spots, with 13, 3, and 1 filings, respectively.

[Graph: Top 10 States for Federal ADA Title III Website Accessibility Lawsuits 2022: NY 2,560, FL 310, PA 216, CA 126, IL 19, MA 13, CT 5, NC 3, IN 2, MN 1. *The number of cases that could be identified through a diligent search.]
[Graph: New York, Florida, Pennsylvania, and California Federal ADA Title III Website Accessibility Lawsuits 2017-2022: NY: 2017 (335), 2018 (1,564), 2019 (1,358), 2020 (1,694), 2021 (2,074), 2022 (2,560); FL: 2017 (325), 2018 (576), 2019 (529), 2020 (302), 2021 (185), 2022 (310); PA: 2017 (58), 2018 (42), 2019 (92), 2020 (173), 2021 (167), 2022 (216); CA: 2017 (9), 2018 (10), 2019 (121), 2020 (223), 2021 (360), 2022 (126).]

If you’re wondering why California has so few website accessibility cases relative to New York, it is likely because New York courts have been more favorable toward plaintiffs, especially when the defendant is an online-only business. Whether online only businesses are covered by the ADA remains unanswered by the Court of Appeals for the Second Circuit; however, with a few exceptions, district court judges in New York that have addressed the issue have found that online only businesses are covered by the ADA. 

In contrast, in California, both federal and state courts of appeals have reached the conclusion that online only businesses are not covered by the ADA, making it much more difficult (if not impossible) for plaintiffs to sue online-only businesses for accessibility violations.  Thus, we predict fewer website accessibility cases in both California state and federal courts in the future.

These numbers do not account for the many demand letters sent out by law firms which never result in lawsuits, as well as lawsuits filed in state courts (mostly in California) which are more difficult to track.  These numbers also do not include lawsuits filed alleging that a mobile app is inaccessible, unless the lawsuit also alleged an inaccessible website.

Will the Title II rulemaking effort slated to start in 2023 make a difference in the 2023 lawsuit count?  Unlikely, as that process can take a significant amount of time, and only would apply to state and local governments under Title II and not private businesses.  While a Title III rulemaking could follow, it is highly unlikely to be completed by the end of this Presidential term.

***

About our methodology:  Our 2022 numbers are based on searches using keywords of data from the Courthouse News Services.  Thus, it is possible that there are some website accessibility cases that were not captured in the searches if their descriptions did not include the keywords.  We then review the thousands of entries manually to remove lawsuits that may be about websites but are not about a website’s accessibility to a user with a disability.  For example, there were a number of lawsuits in 2018-2021 (a very large explosion of such suits in 2021 in California) brought by plaintiffs with mobility disabilities alleging that the reservations websites of hotels did not provide adequate information about the accessibility of hotel facilities.

nigel-tadyanehondo-wny6Y4MbyhA-unsplash

By Minh N. Vu

Seyfarth synopsis:  We predict 2022 will look a lot like 2021 with roughly the same number of lawsuits and DOJ pushing the boundaries of the ADA.

Like 2020, 2021 was a tough year for businesses.  Still dealing with the constantly-changing COVID-19 landscape, businesses were also bombarded with what may be another record number of ADA Title III federal lawsuits as well as rejuvenated U.S. Department of Justice (DOJ) enforcement activities.  Here are our predictions for 2022.

DOJ Enforcement Activities.  After little activity in the Trump era (except for the significant withdrawal of the web accessibility rulemaking effort), as we predicted, the new Biden Administration DOJ ramped up enforcement activity in 2021 and is pushing the law’s boundaries.  For example, in two recent settlements concerning vaccine websites of two retailers, the DOJ required conformance with WCAG 2.1 AA, even though the legal standard for the accessibility of its own websites and those of other federal agencies (under Section 508 of the Rehabilitation Act) is WCAG 2.0 AA. (DOJ has yet to issue regulations adopting any version of the WCAG for public accommodations websites and there is no pending rulemaking to do so.)  As another example, at the end of 2021, DOJ sued a chain of 23 medical eye centers that provide eye care and outpatient surgery for not having personnel to lift patients who cannot independently transfer onto exam chairs or surgery tables.  The Biden DOJ also filed four Statements of Interest in pending lawsuits in support of ADA plaintiffs within twelve months – a dramatic change from the Trump DOJ which rarely weighed in on any ADA issues.  We expect in 2022 and beyond that the DOJ will continue to be more aggressive in its enforcement of Title III of the ADA, try to expand the reach of the ADA, and be more supportive of plaintiffs in their private lawsuits.

Important Appellate Decisions.  In April 2021, the Eleventh Circuit Court of Appeals overturned a Florida district court decision that grocery retailer Winn-Dixie had violated the ADA by having an inaccessible website. The Eleventh Circuit found that the website barriers in question did not prevent the plaintiff from accessing the goods and services offered at the retailer’s stores.  In May 2021, the plaintiff filed a petition for rehearing en banc.  We thought the Court would not rule until 2022 but then a decision issued at the end of 2021.  The Court dismissed the appeal as moot, vacated its prior decision as well as the district court judgment below, and remanded the case to the district court to dismiss as moot.  We will discuss this outcome in a forthcoming post, but with this case dismissed, there are no federal appeals involving website accessibility pending.

On the opposite side of the country, the lodging industry is awaiting decisions from the Ninth Circuit Court of Appeals in four cases concerning an ADA Title III regulation that requires hotels to disclose information about the accessibility of the hotel on their reservations websites.  As we previously reported, one law firm in southern California filed over 565 lawsuits on behalf of a handful of plaintiffs alleging that the defendant hotels did not provide enough information about their accessible rooms and/or common areas on their reservations websites.  Nearly 90 district courts have rejected the plaintiffs’ demands for more information, and four of those decisions are on appeal.  How the Ninth Circuit decides these cases will impact hundreds of lawsuits that are stayed pending these appeals.  Oral argument in two of the cases is scheduled for February 14, 2022.

Federal Lawsuit Filings.  We are still crunching the numbers but the number of ADA Title III lawsuits filed in federal courts in 2021 will certainly top 11,000, and likely will continue that upward trajectory in 2022.

Website Accessibility Lawsuits.  As we reported at the end of 2021, lawsuits concerning allegedly inaccessible websites – usually by blind plaintiffs who use screen-readers to access websites –  continue to be filed at a rapid pace.  The Southern District of New York is now a favored venue for the plaintiff’s bar, along with California state and federal courts.   Website accessibility lawsuit activity in Florida quieted down after the Eleventh Circuit’s pro-business Winn-Dixie decision which has now been vacated as discussed above.  Perhaps as a result of this ruling, some plaintiff’s lawyers in Florida have now taken to filing their website accessibility discrimination complaints with Florida county human rights commissions instead of in federal court.  The benefit of filing under state and local non-discrimination laws is that plaintiffs can recover damages, unlike under the ADA which only provides for injunctive relief.

COVID-19 Related Litigation.  The pandemic and mask-wearing requirements imposed by businesses resulted in a relatively small number of lawsuits by plaintiffs alleging that they should be exempt from mask requirements because of a disability.  A number of these lawsuits were dismissed early without meaningful legal analysis, but some continue to be litigated.  Thus, we may see some substantive decisions this year on whether businesses have an obligation to modify their mask (and/or in some cases mandatory vaccination) policies for people with legitimate disabilities and what those modifications look like.

Revived Rulemaking for Equipment and Furniture.  The Obama DOJ repeatedly stated it would propose regulations for non-fixed equipment and furniture (including hotel beds) but issued no proposed regulations during the entire eight years of the Administration.  In 2017, consistent with its anti-regulation agenda, the Trump Administration pulled the plug on this rulemaking effort altogether.  In December 2021, the DOJ announced that it would issue an Advanced Notice of Proposed Rulemaking (ANPRM) in the Fall of 2022 on equipment and furniture.  While clear rules for beds in accessible hotel rooms would be very helpful for the hotel industry, we are not going to be holding our breath given DOJ’s prior inaction on this issue.

Meanwhile, the U.S. Access Board announced that it will issue an ANPRM for fixed self-service transaction machines, self-service kiosks, information transaction machines, and point-of-sale devices by April 2022.  Since an ANPRM precedes the issuance of a proposed rule, it will be many years before there will be regulations on these self-service technologies that apply to public accommodations.  Regulations issued by the Access Board are not binding on public accommodations until the DOJ (or any other federal agency) adopts them in a rulemaking of its own.  It’s a two-step process that will take years.  That said, the absence of regulations does not necessarily mean that self-service machines do not need to be accessible, as the DOJ previously stated in 2014.

***

In sum, it’s going to be a busy year for businesses on the ADA Title III front. Businesses are well-advised to review their current accessibility policies, procedures, practices, and training programs to ensure compliance with the ADA and equivalent state laws.

Edited by Kristina Launey

Seyfarth Synopsis:  Utah businesses are experiencing an unprecedented number of ADA Title III lawsuits.

Utah used to be a good place for public accommodations that did not want to be sued for ADA Title III violations.  In 2013, 2014, and 2015 combined, plaintiffs only filed a total of eight such lawsuits in federal court (1, 6, and 1, respectively).  In 2016, the number surged to 124, making Utah the seventh most busy federal venue for such filings for that year.  In just the first five months of 2017, plaintiffs have filed 125 lawsuits in the Utah federal courts, the highest number since we started tracking them in 2013.

Federal ADA Title III Lawsuits Filed in Utah Federal Courts: 2013-2017: 2013 (1), 2014 (6), 2015 (1), 2016 (124), Jan.-May 2017 (125)

Nine plaintiffs are responsible for the 2017 numbers so far, with one who has filed 57 such suits.  Another six plaintiffs have each filed between 9 and 15 cases, and two have only filed one case each.  These plaintiffs have been represented by one of six law firms, one of which was counsel in 105 of the 124 cases filed in 2016.  Most of these cases appear to concern alleged architectural barriers in public accommodations facilities.

Utah businesses are not likely to experience the level of disability access litigation as their counterparts in California, Florida, or New York, but we are not ruling out that possibility.

Disabled sign pinned on cork noticeboard

Seyfarth Synopsis:  Recent guidance from the U.S. Access Board makes it more difficult for businesses to argue that the Accessible Icon constitutes “equivalent facilitation” under the ADA, even though jurisdictions such as New York and Connecticut require the use of this alternative disability access symbol.

As we previously reported, New York State and more recently, Connecticut, passed legislation requiring the use of the “Accessible Icon” in lieu of the traditional International Symbol of Access (“ISA”) in new construction and alterations whenever an accessibility sign is required by code.  But Title III of the ADA and the Architectural Barriers Act (“ABA”), which apply to public accommodations facilities and federally-funded facilities, respectively, still require the use of the ISA.  Specifically, the ADA and ABA require that the ISA be used to label and provide direction to certain accessible spaces and elements, such as restrooms, parking spaces, and check-out aisles.

This conflict has presented a quandary for businesses: Display the ISA as the ADA requires; display the Accessible Icon, as state or local codes require; or, display both symbols, which would multiply costs, negatively impact aesthetics, and potentially confuse patrons.

Last week, the U.S. Access Board, the federal agency that drafted the ADA Standards for Accessible Design (which the Department of Justice (“DOJ”) incorporated into its ADA Title III regulations) and also sets accessibility standards for federal agencies, issued a Guidance stating unequivocally that “the ISA must be used even where a state or local code or regulation specifies a different symbol.”  Although the DOJ, not the Access Board, enforces Title III of the ADA and the ADA Standards for Accessible Design, the Guidance could be considered by a court in a Title III enforcement action, given the Access Board’s relevant expertise.

Is the ISA Really Outmoded?

The Accessible Icon Project began as a “street art” campaign that was apparently intended to replace the “traditional,” static figure displayed in the ISA with a more active, dynamic and positive depiction of individuals with disabilities.

The ISA (left) and the Accessible Icon (right)

The effort to replace the ISA with the Accessible Icon has faced recent hurdles.  In May 2015, the Federal Highway Administration (“FHA”) issued an Interpretation Letter stating that the use of alternative symbols of accessibility are not acceptable for traffic control device applications because they are not “unmistakably similar” to the ISA.  The agency went one step further, commenting that the use of non-conforming symbols, including “by approval of local authority,” “compromises the enforceability of these devices.” (emphasis added)  The Interpretation Letter also noted that the Access Board has not adopted or endorsed any alternative designs.

Access Board: the ISA is Still the Recognized Symbol of Accessibility

The Access Board’s Guidance states that the ISA has become a “worldwide” symbol that “reflects considerable analysis by, and consensus of, an international collection of technical experts,” including the International Organization for Standardization, which is a non-governmental organization that represents over 160 national standard-setting agencies.  In addition to the ADA Standards for Accessible Design, the U.S. Department of Transportation’s ADA Standards, ABA, International Building Code (“IBC”), National Fire Protection Association Standards, and ICC A117.1 also require the ISA.

No Endorsement of the Accessible Icon as “Equivalent Facilitation”

Businesses in New York or Connecticut where they are required by new state laws to use the Accessible Icon in new construction and alterations could display the Accessible Icon and take the position that its use satisfies the “equivalent facilitation” provision in Section 103 of the 2010 ADA Standards for Accessible Design.  Under Section 103, businesses may use “designs. . . as alternatives to those prescribed [by the ADA], provided they result in substantially equivalent or greater accessibility and usability.”  However, no court or agency has ruled on this issue.  The Guidance does not comment on whether the Accessible Icon would constitute “equivalent facilitation” but instead defers to the courts, and encourages those advocating for a new symbol to contact the International Organization for Standardization.

The Guidance stresses the value of uniformity and recognition over what some believe is a negative (or at least limiting) depiction of individuals with disabilities.  The ISA “promotes legibility, especially for people with low vision or cognitive disabilities,” according to the Guidance.  This supports the Access Board’s conclusion that, irrespective of conflicting state or local requirements, businesses must display the ISA where required by federal standards.

Businesses Should Carefully Consider the Use of the Accessibility Icon in Future Projects

The situation is confusing, but one thing is clear:  Businesses that do not use the traditional ISA symbol where it is required by federal law face litigation exposure under Title III of the ADA, and the Access Board’s Guidance makes the “equivalent facilitation” argument more challenging.  Businesses in New York and Connecticut should seek guidance on whether local permitting authorities have the ability to waive the Accessible Icon requirement, the consequences of not using the Accessible Icon, and the implications of using both the Accessible Icon and the ISA.

Edited by Kristina Launey and Minh Vu.

Florida is one of the top states for ADA Title III filings.  As we previously reported, in 2015, California, Florida, New York, Texas, and Arizona had 3,847 ADA Title III lawsuits.  This accounts for 80% of the lawsuits filed nationwide.  Businesses are complaining, and the news media is paying attention.  Miami Local 10 News, an ABC affiliate, reported on the surge of ADA Title III lawsuits nationwide and three local small businesses that were sued by a serial plaintiff who filed more than a hundred and thirty lawsuits in 2015.  Seyfarth’s ADA Title III Team Leader, Minh Vu, provided legal commentary for the story in an interview with reporter Christina Vazquez.

By Kristina M. Launey & Minh N. Vu

Seyfarth Synopsis: Plaintiffs filed 2,452 website accessibility lawsuits in federal court in 2024 – a 13% decrease from 2023. 

Website accessibility lawsuits filed in federal court fell for the second consecutive year in 2024, with a significant decrease from 2023 filings.  The total number of lawsuits filed in federal court alleging that plaintiffs with a disability could not use websites because they were not designed to be accessible and/or work with assistive technologies in 2024 was 2,452.  This number is 342 fewer than 2023’s total of 2,749, representing a 13% decrease. 

[Graph: ADA Title III Website Accessibility Lawsuits in Federal Court 2017-2024: 2017: 814; 2018: 2,258 (177% increase from 2017); 2019: 2,256 (.01% decrease from 2018), 2020: 2,523 (14% increase from 2019); 2021: 2,895 (12% increase from 2020); 2022: 3,255 (12% increase from 2021); 2023: 2,794 (14% decrease from 2022); 2024: 2,452 (13% decrease from 2023). *The number of cases that could be identified through a diligent search.]

Website accessibility lawsuits accounted for 28% percent of the total number of ADA Title III lawsuits filed in federal court in 2024 (2,452 out of 8,800 cases).  In 2023, website accessibility lawsuits made up 34 percent of all the ADA Title III lawsuits filed in federal court (2,794 out of 8,227 cases).  Also, as shown in the graph below, the number of filings per month ranged from a low of 167 cases in April to a high of 261 cases in October. 

[Graph: Total Number of Website Accessibility Lawsuits Filed by Month (Jan. 2024 – Dec. 2024): Jan. 2024 (168), Feb. 2024 (210), Mar. 2024 (188), Apr. 2024 (167), May 2024 (203), Jun. 2024 (196), Jul. 2024 (179), Aug. 2024 (205), Sep. 2024 (230), Oct. 2024 (261), Nov. 2024 (220), Dec. 2024 (225). *The number of cases that could be identified through a diligent search.]

New York federal courts continued to be the busiest with 1,564 lawsuits.  Florida was a distant second with 470 lawsuits, up from 385 in 2023.  Minnesota came in third with 114 lawsuits.  Pennsylvania passed Illinois for the fourth spot with 103 lawsuits.  Illinois did manage to stay in the top 5 with 93 lawsuits.  Remarkably, California’s federal courts only had three new website accessibility lawsuits last year.

[Graph: Federal ADA Title III Website Accessibility Lawsuits per State, Jan. 2024 – Dec. 2024: NY 1,564, FL 470, MN 114, PA 103, IL 93, NJ 37, MO 35, WI 14, MA 10, IN 6, CA 3, NC 2, LA 1. *The number of cases that could be identified through a diligent search.]

[Graph: New York, Florida, Pennsylvania, and California Federal ADA Title III Website Accessibility Lawsuits 2017-2024: NY: 2017 (335), 2018 (1,564), 2019 (1,358), 2020 (1,694), 2021 (2,074), 2022 (2,560), 2023 (2,152), 2024 (1,564); FL: 2017 (325), 2018 (576), 2019 (529), 2020 (302), 2021 (185), 2022 (310), 2023 (385), 2024 (470); PA: 2017 (58), 2018 (42), 2019 (92), 2020 (173), 2021 (167), 2022 (216), 2023 (143), 2024 (103); CA: 2017 (9), 2018 (10), 2019 (121), 2020 (223), 2021 (360), 2022 (126), 2023 (30), 2024 (3).]

If you’re wondering why California has so few website accessibility cases relative to New York, it is likely because judges in New York federal courts have been more favorable toward plaintiffs when the defendant is an online-only business. Although the Court of Appeals for the Second Circuit has yet to decide whether online-only businesses are covered by the ADA, most district court judges in New York – with a few exceptions – to have addressed the issue have concluded that they are.   That said, New York federal courts have been more demanding lately with regard to the allegations necessary to establish a plaintiff’s standing.

In California, both federal and state courts of appeal have reached the conclusion that online only businesses are not covered by the ADA, making it virtually impossible for plaintiffs to file viable lawsuits against online-only businesses for accessibility violations.  Thus, we predict fewer website accessibility cases in both California state and federal courts in the future; though we still see a significant number of demand letters and lawsuits filed in state courts, which are not included in our federal lawsuit numbers, especially against businesses with physical locations.

Why was there an overall decrease in the number of website accessibility lawsuits filed in federal courts throughout the country last year?  While there is no way to know for certain, we think there are at least three possible factors in play. 

First, and most significantly, more and more plaintiffs’ firms responsible for historically significant numbers of filings have been filing website accessibility lawsuits in state courts instead of federal court.  Since these filings are difficult to track, it may well be that the total number of website accessibility lawsuits increased year-over-year when accounting for state court filings.  

Second, some of the plaintiffs’ lawyers who used to file a substantial number of these lawsuits have been less active in this space. 

Third, more businesses are making website accessibility a priority which, in turn, may have reduced the number of inaccessible websites to sue.   

One thing is likely certain:  Unless the present administration and/or Congress makes significant changes to the ADA Title III statutory, regulatory, or enforcement schemes – a highly unlikely scenario – website accessibility lawsuits will continue to be filed.  What the numbers will look like remains to be seen.   

***

About our methodology:  Our 2024 numbers are based on searches using keywords of data from the Courthouse News Services.  Thus, it is possible that there are some website accessibility cases that were not captured in the searches if their descriptions did not include the keywords.  We then review the thousands of entries manually to remove lawsuits that may be about websites but are not about a website’s accessibility to a user with a disability. 

Edited by John W. Egan

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Image of a shopping cart on top of a computer.

By: Lotus Cannon and Kristina Launey

Seyfarth Synopsis: Are web-only businesses subject to Title III? A Minnesota federal court joins the controversy and says yes.

Courts around the country are split on the issue of whether a “place of public accommodation” subject to Title III of the Americans with Disabilities Act must have a physical location where it serves the public.  A federal trial court in Minnesota recently denied a web-only business’s motion to dismiss, ruling that web-only businesses are covered by Title III, siding with the courts that have concluded that no physical place is required.

Recognizing the disagreement among federal appellate and trial courts on this issue, as well as the fact that the Eighth Circuit Court of Appeals (within which the District of Minnesota sits) has not opined on the issue, the Court went to great lengths to justify its decision that a “public accommodation” does not have to be a physical place.

First, the Court sought to distinguish the Third, Sixth, and Ninth Circuit decisions finding that public accommodations are limited to “physical structures” by stating that those cases were about whether the ADA applied to the content of insurance policies, not websites. 

Second, the Court stated that those courts had “allowed the canon of noscitur a sociis to play too great a role in their analysis.”  This cannon of statutory construction states that a word is known by the company it keeps and is used to interpret ambiguous words.  The Court insisted that the application of this rule “ignores the maxim that a remedial statute should be read broadly” and runs counter to the “ADA’s intent, which Congress enacted ‘to eliminate discrimination against disabled individuals, and to integrate them into the economic and social mainstream of American life.’” 

Third, the Court gave no weight to the dictionary definition of the word “place” in the phrase “place of public accommodation” because that definition, in the Court’s view, was “inconclusive.”

Fourth, the Court noted that Congress’ failure to amend the ADA to explicitly include websites should not be construed as Congress’s intention to exclude websites. To the contrary, the Court posited that the lack of legislative action could be interpreted as an understanding that no amendment is required to cover online-only businesses.

The bottom line is that the Court found the exclusion of online-only businesses from the ADA’s coverage inconsistent with the ADA’s mandate to ensure equal access for individuals with disabilities to businesses’ goods and services, noting that shopping via retail websites is not meaningfully different from shopping at physical stores. 

While we have yet to see other district courts in the Eighth Circuit weigh in on this issue, this decision may spark a trend of web accessibility lawsuits in Minnesota and the Eighth Circuit, as we have seen from plaintiff-friendly rulings in New York. 

Edited by: Minh N. Vu