Web Accessibility Outlook: More Regulation, Less Litigation

With the 32nd anniversary of the Americans with Disabilities Act last month, regulators and courts seem to be bestowing belated gifts upon businesses and advocacy groups.

After years of endless website accessibility litigation and demand letters, relief from both the courts and federal regulatory agencies may finally be at hand.

During the first half of 2022, the developments in this space, while significant in concept, actually did little to change the playing field. The U.S. Department of Justice issued its long-awaited website accessibility guidance on March 18.

But this guidance was a summary of previously articulated positions, and contained nothing in the way of new regulations. It therefore failed to stop the waves of website accessibility cases.

Thankfully, the second half of the year has already reflected progress for businesses, as courts — growing tired of serial plaintiffs' filings — are making it increasingly difficult for the same individuals or attorneys to file hundreds of website accessibility cases.

Government agencies, including the DOJ, seem prepared to finally take steps to create regulations. The department announced that it intends to restart the rulemaking process to enact website accessibility regulations under Title II of the ADA — which applies to state and local governments.

The DOJ also recently issued joint guidance with the U.S. Department of Health and Human Services on making telehealth services accessible to people with disabilities.

Furthermore, courts are finally sending serial plaintiffs in New York and California a clear message: Standing to maintain their claims is not presumed — and neither is coverage by the ADA or state and local law — simply because they reference a business's website.

These two states are effectively the two most prevalent jurisdictions for website accessibility litigation — with Florida close behind. So the courts pushing back and the looming promise of more regulation could mean that a slowdown of these filings may be imminent.