Website Accessibility Cases Push ADA Lawsuits to New High

The number of ADA Title III [prohibits discrimination on the basis of disability in the activities of places of public accommodations and commercial facilities] lawsuits filed in federal court in 2018 hit a record high of 10,163 – up 34% from 2017 when the number was a mere 7,663.  This is by far the highest number of annual filings since we started tracking these numbers in 2013, when the number of federal filings was only 2,722.

As we predicted, the number of website accessibility lawsuits (i.e. lawsuits alleging that plaintiffs with a disability could not use websites because they were not coded to work with assistive technologies like screen readers, or otherwise accessible to them) filed in federal court under Title III of the ADA exploded in 2018 to at least 2,258 – increasing by 177% from 814 such lawsuits in 2017.

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Plaintiffs filed these federal ADA Title III lawsuits in 14 states — New York and Florida being the busiest jurisdictions with 1564 and 576 lawsuits, respectively.  Pennsylvania and Massachusetts held distant third and fourth positions, as shown in the chart.

The number of New York federal website accessibility lawsuits is staggering, brought primarily by 15 law firms/lawyers.    We saw a surge in these cases after New York federal judges allowed website accessibility cases to proceed to discovery in lawsuits against Blick Art and Five Guys. The 2018 New York website accessibility filing statistic brought New York into a close second to California in the total number of ADA Title III lawsuits (not just website accessibility cases) filed in federal court.

Total ADA Title III filings in New York more than doubled from 2017 to 2018 (1,023 vs. 2,338) while the number of cases filed in Florida only increased from 1,488 to 1,94, ranking it third among all the states.

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The fact that the California federal courts only had 10 website accessibility lawsuits filings in 2018 may be a surprise to some since California continues to lead the pack in the number of all ADA Title III lawsuit filings in federal court. The number of lawsuits filed in California increased by 54% from 2751 in 2,017 to 4,249 in 2018.  This record-breaking California number does not even include the many state court filings which we do not track.

However, it appears that plaintiffs filed their new cases in state court after a federal judge in the Central District of California dismissed a website accessibility lawsuit against Dominos’ in 2017.  The Ninth Circuit reversed that dismissal last month, making California federal court an attractive venue for plaintiffs once again. We predict that the Ninth Circuit’s ruling will cause the number of website accessibility lawsuits in California federal courts to increase dramatically in 2019.

About our methodology:  Our 2018 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 brought by plaintiffs with mobility disabilities alleging that the reservations websites of hotels did not provide adequate information about the accessibility of hotel facilities. We also removed a number of lawsuits brought against state and local government entities under Title II of the ADA for having inaccessible websites.

This article was originally published on the Seyfarth Shaw ADA Title III blog. Additional material was added.

Ms. Vu is a partner in the Washington, D.C. office of Seyfarth Shaw. She is the leader of the firm’s ADA Title III Specialty Practice Team. Ms. Vu’s national practice focuses exclusively on the legal obligations of places of public accommodation, recipients of federal assistance, government contractors, and housing providers to individuals with disabilities under Title III of the American with Disabilities Act (ADA), Section 504 of the Rehabilitation Act, the Fair Housing Act (FHA), and various state non-discrimination statutes.

Ms. Vu is a recognized thought leader on ADA Title III issues who is known for her practical and business-friendly approach to litigation as well as compliance under this law.  In 2012, Ms. Vu authored the ADA Guide for Lodging Owners and Operators, the first book of its kind published by the American Hotel & Lodging Association (AH&LA). Ms. Vu also is the editor of and a primary contributor to Seyfarth’s  ADA Title III News & Insights Blog which has been quoted in many publications, including The Wall Street JournalCNN, and The Economist.

 

Kristina Launey is in the Labor & Employment Department of Seyfarth Shaw LLP and Managing Partner of the Sacramento office. She is an efficient and effective litigator and counselor, specializing in employment and civil rights laws, who provides clients with options and helps them achieve results in light of their businesses realities.

A member of Seyfarth’s ADA Title III Specialty Team, Ms. Launey regularly advises and defends clients in litigation arising under Titles II and III of the Americans with Disabilities Act and related California disability access laws - the Unruh Act and Disabled Persons Act. She has defended disability access lawsuits ranging from the very complex and contentious to those resulting in relatively simple settlements, and engaged in structured negotiations.

She is co-editor of Seyfarth’s www.adatitleiii.com blog, and frequently speaks on accessibility issues. 

She also represents clients before a variety of administrative agencies, including the EEOC, DFEH, DOL, and DLSE. Ms. Launey has extensive experience litigating single, multi-plaintiff, and class actions in federal and state courts as well as private arbitration, involving, as exemplar, discrimination, harassment, and retaliation, torts, contract, and wage and hour claims.

Ms. Launey practiced employment law prior to joining Seyfarth as a Deputy in the California Legislative Counsel’s Office, where she drafted legislation affecting employers, advised the Legislature on compliance with employment laws, and supervised outside counsel in litigation.

Through her current work as Seyfarth’s California Legislative Team Leader, she helps employers understand, navigate, and implement the requirements of new legislation that impacts the way they do business in California. Through this and her activity as a founding member of Seyfarth’s Pay Equity Group, she has also helped keep clients on top of pay equity developments and best practices.

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