Introduction
In 2024, over 4,000 lawsuits were filed in federal and state courts by individuals with visual, hearing, or other disabilities, alleging that companies’ websites and mobile applications failed to comply with Title III of the Americans with Disabilities Act (ADA). These individuals claimed the websites and mobile apps had digital “barriers” that prevented them from effectively navigating company websites and preventing them from enjoying the “goods and services” of those companies. Digital “barriers” include incompatibility with screen-reader software, the absence of “alternate text,” missing captions or transcripts for video and audio content, insufficient color contrast, broken links, pop-ups, or widgets and plug-ins creating keyboard navigation errors, and supplementary call lines having unreasonable wait times. While not directly an employment issue, most employers operate websites that are accessible to the public putting them at risk for one of these increasingly prevalent lawsuits.
These lawsuits are typically based on elements of a website or mobile app that do not meet the international consensus standards known as the Web Content Accessibility Guidelines (WCAG). In 2023, the Department of Justice (DOJ) issued regulations under ADA Title II for state and local governmental entities setting WCAG 2.1, Level AA as the minimum standard for compliance.
The threshold issue in every digital accessibility case is whether a particular website is covered by ADA Title III and this flurry of litigation has forced federal and state courts across the country to pick sides. Some jurisdictions hold that the websites and mobile apps must be accessible regardless of the businesses’ circumstances, with others finding that digital accessibility is not required. While the majority of these cases have been filed in New York, Florida, and California, there has been a significant increase in cases recently filed within the 7th Circuit (Wisconsin, Illinois, and Indiana), as well.
Digital accessibility lawsuits, just like their counterparts alleging barriers to accessing physical locations, rely on 42 U.S.C. 12182(a). That statute, titled “Prohibition of discrimination by public accommodations,” states:
No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.
The text of ADA Title III and the DOJ regulations are all very clear regarding what is a “place of public accommodation”—those physical stores, restaurants, clinics, etc. that fall within one of the 12 categories of businesses listed in the statute. The internet, as we know it, did not exist when the ADA passed in 1990. As a result, federal courts have struggled with how the ADA applies to company websites and are divided in their interpretation of the statute.
There Are Currently Three Prevailing Opinions Amongst the Federal Circuit Courts
There are currently three approaches amongst the Federal Circuit Courts.[1] The 3rd, 5th, 6th and 9th Circuits hold that a company can only be sued under the ADA over the accessibility of its digital site if it has a sufficient “nexus” to a physical location such that there is a strong connection between the digital site and an actual physical location. Under this approach, if a retail store or other public accommodation has a website, the plaintiff must show some nexus between the website and those physical locations.
The 1st Circuit (and, as discussed below, it now appears the 7th Circuit also) holds that a digital site that offers goods or services directly to the public and is within one of the categories under the ADA is included within the definition of place of public accommodation. The 1st Circuit later extended this decision to online only businesses. As discussed below, some lower courts in the 7th Circuit have agreed with this extension.
In what was considered a landmark case, the 11th Circuit took a different position when it held in 2021 that a digital site is never itself a “place of public accommodation,” but the accessibility of a website could be an “intangible barrier” to access the goods and services in the store. This would require the website to not only have a nexus to an actual physical location, but the website must create some additional burden to accessing the physical location. After subsequent proceedings, the 11th Circuit dismissed the case as moot and reversed its earlier decision. It is unclear how the 11th Circuit will rule in future cases.
The remaining Circuits are undecided and/or unsettled.
The Seventh Circuit’s Trend Toward the First Circuit’s Broad Definition
While the 7th Circuit has yet to definitively rule on this issue, the district courts within the 7th Circuit have begun to side with the 1st Circuit’s broad definition of “places of public accommodation.” This trend can be seen in the recent Northern District of Illinois case, Walsh v. Dania, Inc., where the district court found a furniture company liable under the ADA due to its website, stating, “that a place of public accommodation is not limited to physical spaces . . . [t]o hold otherwise would allow all sales establishments, places of education, and other public accommodations operating exclusively online to fully deny access to visually impaired and blind individuals.” In coming to this conclusion, the District Court referenced two 7th Circuit cases Doe v. Mutual of Omaha Ins. Co. and Morgan v. Joint Admin. Board. [2]
Since Walsh, there have been two additional district court cases in the 7th Circuit that reached similar outcomes. In McCabe v. Tire Web, LLC, the court found a California online seller of car tires liable for violating Title III of the ADA by failing to make its website accessible. Similarly, in McCabe v. Heid Music Company, Inc., the court found a Wisconsin owner of a digital music instrument sales platform liable for violating Title III of the ADA for failing to make its digital properties accessible to legally blind individuals.
These decisions mean that the Northern District of Illinois in particular, and elsewhere in the 7th Circuit, are now friendly venues for claims against online-only businesses, which is contributing to a recent influx of website accessibility cases there. While these businesses cannot be held liable for monetary damages under ADA Title III, they can be forced to defend such cases, make their websites compliant, and pay significant attorneys’ fees to the prevailing plaintiff.
Recommended Action for Companies
Even the smallest companies with an online presence are at risk of suit -- those with a physical presence are at an even higher risk. However, this does not mean businesses are without defenses. Because one of the results of these lawsuits is an injunction that requires a company to remediate its website’s accessibility issues, a company could preemptively adopt and publish a plan to ensure its website is accessible. Any published plan should include steps the company will take to remediate known or unknown issues and an estimated timeline to completion. Additionally, it is the plaintiff’s burden to establish standing, and they must prove they suffered an “injury in fact” to be entitled to injunctive relief based upon their “intent to return” to a particular website. In many of these cases, the plaintiffs fail to plead these facts, leaving the case susceptible to a motion to dismiss.
As a practical matter, companies also need to ensure their internal and external web developers, and others creating content, understand accessibility issues. Companies need a reputable outside firm to assist and do periodic testing. And, buyer beware -- if a product sounds too good to be true, it probably is. The Federal Trade Commission recently found that the owner of one of the major website accessibility “overlays” engaged in false advertising. There are many other companies marketing quick, cheap fixes, but there is no substitute (for now) of making website content accessible at the code level.
As a starting point, we encourage companies to review the resources compiled for state and local governments on ADA, ADA.gov or the full WCAG 2.1 guidelines document to assess whether their digital sites meet the recommended WCAG 2.1 Level AA standards.
Please note: Summer Associate, Dakota Neff, contributed to the writing of this blog post.
[1] The DOJ has consistently taken the position that when a business has a website that relates to its operations, the information, goods, and services on that website must be accessible to customers with disabilities.
[2] See Doe v. Mutual of Omaha Ins. Co., 179 F.3d 557, 559 (7th Cir. 1999) (“The core meaning of [Title III section 302(a)], plainly enough, is that the owner or operator of a store, hotel, restaurant, dentist's office, travel agency, theater, Web site, or other facility (whether in physical space or in electronic space) that is open to the public cannot exclude disabled persons from entering the facility and, once in, from using the facility in the same way that the nondisabled do.”); Morgan v. Joint Admin. Bd., 268 F.3d 456, 459 (7th Cir. 2001) (“The site of the sale is irrelevant to Congress's goal of granting the disabled equal access to sellers of goods and services. What matters is that the good or service be offered to the public.”).
