According to data from the Courthouse News Service, 2023 website accessibility lawsuits in federal courts have decreased from 2022 levels while at the same time, there appears to be an unexpected jump in cases filed in state courts.
Federal court accessibility lawsuit filings fell by about 14%, with approximately 460 fewer cases filed in 2023 compared to 2022. New York, Florida, Illinois , Pennsylvania, and California-based federal courts continue to be the most popular locations for web accessibility lawsuits.
However, the data also reveal an unexpected jump in cases filed in state courts. Indeed, some of the law firms that have been most responsible for the ongoing boon in federal website accessibility litigation, have now increased their filings of state court claims alleging website disability discrimination. The increase in state cases is most apparent in New York, New Jersey, and Pennsylvania, according to Courthouse News Service data.
One possible explanation for the federal lawsuit drop is that many courts, perhaps frustrated by the continuing crush of ADA website accessibility lawsuits, have started dismissing more of these cases without deciding the substance of their allegations. Courts are increasingly deciding that plaintiffs can only bring claims against businesses when the plaintiff attempts to use the allegedly inaccessible website as a customer, or if they intend to use the website with some frequency. By deciding cases in this way, courts could be trying to cut down on so-called drive by lawsuits, where people search for websites that appear to be inaccessible to people with disabilities and then sue the website owners, whether or not the people suing have actually used the websites for business or intend to do so.
State court cases are harder to keep track of than their federal court counterparts. States typically do not have court case databases that are as user friendly, complete, and easy to access as the federal case management database. The increase in state website accessibility cases may be a new trend. They may also represent an ongoing spate of litigation that was not previously examined. If so, the total number of website accessibility cases, federal and state, may continue to show year by year increases.
In August 2023, the U.S. Department of Justice (DOJ) issued, first-ever new regulations under Title II of the ADA requiring websites and mobile apps of state and local governments to conform to the Web Content Accessibility Guidelines version 2.1, Level AA (WCAG 2.1 AA) within two or three years, depending on the size of these governments.
On April 24, 2024, the Federal Register published DOJ’s final rule updating its website regulations for Title II of the Americans with Disabilities Act (ADA). The final rule has specific requirements about how to ensure that web content and mobile applications (apps) are accessible to people with disabilities.
DOJ also published a summary of the new regulations, which have four exceptions to the website accessibility requirements:
- Archived web content;
- Preexisting conventional electronic documents;
- Content posted by a third party where the third party is not posting due to contractual, licensing, or other arrangements with a public entity; and
- Individualized documents that are password-protected
With the four exceptions, DOJ is emphasizing that state and local governments focus on more current, freely available content that the governments post themselves. DOJ is less concerned about older materials, such as archived content.
According to DOJ:
“State and local governments’ websites often include a lot of content that is not currently used. This information may be outdated, not needed, or repeated somewhere else. Sometimes, this information is archived on the website.
- Web content that meets all four of the following points would not need to meet WCAG 2.1, Level AA:
- The content was created before the date the state or local government must comply with this rule, or reproduces paper documents or the contents of other physical media (audiotapes, film negatives, and CD-ROMs for example) that were created before the government must comply with this rule, AND
- The content is kept only for reference, research, or recordkeeping, AND
- The content is kept in a special area for archived content, AND
- The content has not been changed since it was archived.”
While federal government agencies only have to comply with WCAG 2.0 AA to be accessible, DOJ adopted the higher, more stringent WCAG 2.1 AA as a legally binding accessibility standard for state and local governments. Before the end of 2023, the World Wide Web Consortium (WC3) issued WCAG 2.2 AA, which added several new recommendations.
For DOJ compliance, state and local governments must make sure that their web content and mobile apps meet WCAG 2.1, Level AA within two or three years of April 24, 2024, depending on the size of their populations.
| This table shows how much time a state or local government has to comply with this rule. | |
| State and local government size | Compliance date |
| 0 to 49,999 persons | April 26, 2027 |
| Special district governments | April 26, 2027 |
| 50,000 or more persons | April 24, 2026 |
Currently, DOJ requires that state and local governments ensure that their web content and mobile apps comply with WCAG 2.1, Level AA.
In May 2024, W3C issued an updated draft of the new WCAG 3.0. According to WC3, Version 3.0 is “a new model and guidelines to make web content and applications accessible to people with disabilities… Following these guidelines will address many of the needs of users with blindness, low vision and other vision impairments; deafness and hearing loss; limited movement and dexterity; speech disabilities; sensory disorders; cognitive and learning disabilities.”
The rapidly changing WCAG recommendations reflect the dynamic nature of website accessibility – new rules, new online issues to address, and new technologies that must adapt their products to be accessible to people with disabilities.
DOJ has yet to release ADA Title III website accessibility regulations that would apply to private business that are open to the general public. DOJ will likely not publish Title III regulations in the near future. The agency first wants to see how the new Title II regulations work with local and state governments before moving onto new rules for businesses. The winner of the November presidential election will also determine how far DOJ can go in having more websites converted into accessible online places for people with disabilities.
© Bruce L. Adelson 2024. All Rights Reserved The material herein is educational and informational only. No legal advice is intended or conveyed.
Bruce L. Adelson, Esq., is nationally recognized for his compliance expertise. Mr. Adelson is a former U.S Department of Justice Civil Rights Division Senior Trial Attorney. Mr. Adelson is a faculty member at the Georgetown University School of Medicine and University of Pittsburgh School of Law where he teaches organizational culture, implicit bias, cultural and civil rights awareness.
Mr. Adelson’s blogs are a Bromberg exclusive.