The Americans with Disabilities Act (ADA) became law in 1990 and its primary focus is Title III, which concerns accessibility for those with disabilities in public accommodations and commercial “brick and mortar” facilities. But the ensuing arrival of the internet and its new platform for selling products was seized upon by trial lawyers as a “target rich environment” for ADA website lawsuits.
The proliferation of these nuisance lawsuits has gone unchecked for reasons starting with Dept. of Justice (DOJ) reluctance to revise ADA regulations for websites. DOJ prefers that Congress amend the ADA statute for this purpose, holding that the privately developed Web Content Accessibility Guideline (WCAG) applies to ADA website compliance.
Congress tried to curb ADA website lawsuits in 2018 when 103 House members wrote to DOJ asking that it initiate a moratorium on such lawsuits, “…in the absence of clear statutory authority and issuance by the department of a final rule establishing website accessibility standards.” But DOJ didn’t opt for a moratorium and reiterated its belief that the WCAG sets the bar for ADA website compliance until Congress amends the statute.
Congress hasn’t been able to move ADA website legislation and the courts have been stymied, too. It was hoped the Supreme Court (SCOTUS) would resolve split court decisions by hearing Domino’s Pizza’s appeal of a ruling that its website wasn’t ADA compliant, but SCOTUS declined to hear the case in 2019. However, an ADA case heard by SCOTUS this year could prove helpful for IHA members.
On March 27, 2023, SCOTUS agreed to hear a case about a Florida woman with an ADA lawsuit against a Maine hotel company but no plans to use its facilities. At issue in Acheson Hotels v. Laufer is whether a private citizen like Deborah Laufer can serve as a “tester” who looks for and sues businesses for alleged ADA violations despite no intent of patronizing the business. In this case, Acheson Hotels is challenging an appeals court ruling in favor of Laufer, a so-called “accessibility tester” who has filed hundreds of such lawsuits against hotels though never planning to stay at their properties.
This case is significant for nearly all businesses with physical locations and/or websites because ADA lawsuits against hotels target both alleged noncompliant accommodations and website information on accessibility so potential guests with disabilities can decide if the property meets their needs. Thus, a SCOTUS ruling in Acheson Hotels v. Laufer could impact ADA website lawsuits.
Perhaps sensing defeat, Laufer’s lawyers asked SCOTUS in July to dismiss her case citing a lower court’s disciplinary action against her original legal team for scheming to profit off the ADA. SCOTUS declined to dismiss the case, indicating the question of mootness would be considered at oral argument in addition to the other questions presented. Oral arguments took place on Oct. 4 with some reports suggesting SCOTUS will find the case is moot, however, Chief Justice Roberts expressed concern that this might open the judicial system to even more manipulation.
In the meantime, on Aug. 4, DOJ published the proposed rule “Nondiscrimination on the Basis of Disability: Accessibility of Web Information and Services of State and Local Government Entities.” This would revise regulations under Title II of the ADA to establish technical standards for state and local governmental entities to make their websites and mobile applications accessible for people with disabilities. Key to this proposal is adopting WCAG Version 2.1 Level AA as the technical standard that state and local governments would need to follow, and it’s possible this rulemaking is a precursor for a rulemaking under Title III.
