Midyear Digital Accessibility Legal Landscape: Trends, Tips, and Predictions

• Highlights:

• Digital accessibility lawsuit volume is showing a slight uptick in 2023 from 2022.
• Companies that use accessibility overlays are frequently in the defendant’s seat. And new technology companies aren’t exempt.
• Regulations are in the works for state and local government agencies, and even private-sector organizations should be paying attention.
• Companies of all sizes, in all industries, can get started now to embrace accessibility and avoid legal risk.

Digital accessibility lawsuits are not slowing down. And, when coupled with proposed rulemaking on the horizon, organizations across industries should be paying attention to the accessibility of their websites, apps and platforms. That’s according to leading disability rights attorney, Eve Hill, a partner at Brown Goldstein & Levy. We caught up with her to discuss notable cases since January and the trends they indicate, impending regulations around web accessibility compliance, and how organizations should prepare to meet them.

Level Access: How would you describe the first half of 2023 in the digital accessibility legal landscape?

Eve Hill: The word that comes to mind is “constant.” Things aren’t slowing down. In fact, we’re seeing a bounce back in the number of lawsuits this year from a slight dip we saw in volume in 2022. We’re also still seeing suits emerge in many different industries—including retail, hospitality, and education.

Across the board, it doesn’t seem like any particular industry has gotten the message on the importance of making their digital content accessible for people with disabilities. So as Plaintiff’s firms, we’re still fighting the same fight as we have been continually.

Level Access: As this volume continues, are there trends you’re paying close attention to?

Eve Hill: One issue we’re keeping tabs on is the presence of overlays in the cases being brought forward. Website accessibility overlays are more and more prevalent online, so I think more and more lawsuits are going to be filed that challenge the accessibility of overlays—possibly to the extent that those will no longer be considered as solutions for achieving accessibility.

What’s interesting there is the recent joint statement issued by European Union Disability Forum and the International Association of Accessibility Professionals explaining that overlays don’t guarantee compliance with European accessibility legislation. They recommend that organizations work with digital accessibility experts and people with disabilities to learn how to fix their websites’ code, rather than installing an accessibility overlay or plugin, which can actually make things more frustrating for users of certain assistive technologies.

Level Access: Until recently, organizations have mainly been brought to court for the alleged inaccessibility of their websites or mobile apps. Are you starting to notice new technology companies, like those producing extended reality (XR) or virtual reality (VR) experiences, become defendants in these cases?

Eve Hill: In a word, yes. There was actually a relevant case this April, Panarra versus HTC Corporation, in the district court in New York. That court found that a VR gaming service, VIVEPORT Infinity, was covered by the Americans with Disabilities Act (ADA), under Title III. So, the company reached a settlement agreement, stating that HTC is now going to caption its virtual reality programs and to make sure that the developers who provide other third-party programs also caption theirs.

Another new technology area where we’re seeing litigation is with kiosks, such as check-in kiosks. These have mostly been prevalent for labs and health-care settings.

What this demonstrates is, we’re not going to ignore these developing technologies, and the companies who produce them can’t pretend that they don’t have these obligations around accessibility. Basically, if you thought you were exempt, you should reconsider that!

Level Access: What are some other particularly notable cases from the first half of 2023?

Eve Hill: There are a couple very notable cases that speak to the same question: who has the right to sue over the online discrimination they’ve faced?

First, there’s the Orozco v. Garland case that came down from the DC circuit about Section 508 of the Rehabilitation Act. It said that federal employees have a private right of action to sue for Section 508 violations by federal agencies. So, I expect that that will open some floodgates for federal employees to challenge the accessibility barriers that they’ve been facing at work for years now and that agencies have not been taking seriously.

Then, under the ADA, there’s actually a case just filed with the Supreme Court, called Acheson Hotels v. Laufer. That case is going to answer the question: do you have standing to sue an organization for inaccessible digital experiences purely as an accessibility tester? Right now, people can go to a website as a tester and discover that it’s inaccessible even though they didn’t really want to go to that location or didn’t really want to buy anything from that vendor. But the Supreme Court might say that you can only file suit if you were an actual customer of that restaurant or hotel, for example, or buy something from the website on which you experienced discrimination.

That’s a problem because that would mean that more discrimination actually has to occur before these accessibility issues can be addressed in court, and testers won’t be able to try and prevent it by proactively seeking out websites that contain barriers.

Level Access: As we look ahead to the next half of 2023, what are you and your team paying attention to when it comes to the digital accessibility regulations?

Eve Hill: Two things. First, the Department of Education and the Department of Health and Human Services have announced that they’re going to put out regulations under Section 504 of the Rehabilitation Act, and we expect those to include digital accessibility as well. This will impact organizations receiving federal funding or assistance, like universities and hospitals. And those are supposed to be out by the end of 2023 or the beginning of 2024. Second, the Justice Department (DOJ) has announced that it will put out a regulation about web accessibility for state and local governments under Title II of the ADA.

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Level Access: Based on this public sector activity, should private-sector organizations be paying attention?

Eve Hill: Definitely. The DOJ’s rulemaking under Title II will be important in and of itself, but it will also be important as a precursor to what they might do under Title III, which is the Title under which most businesses are sued for inaccessible websites, apps, and other digital experiences. It’s very, very important because when that happens, it will set a baseline for new websites and for websites going forward so we can stop having these arguments all the time about whether the ADA applies to websites (which the DOJ has already affirmed), and what standard they have to meet, and everyone can just really get down to the business of complying.

Level Access: Looking ahead, what advice do you have for organizations thinking about web accessibility and compliance? What actions should organizations take to keep their names out of court filings?

Eve Hill: The first thing I’d say is, find out whether your website is accessible. If you don’t know, that probably means it is not accessible. I’ve spoken a lot here about impending rulemaking from the DOJ. And rulemaking is really important for setting a standard down on paper. But it’s already clear right now, based on case law and the DOJ’s guidance, what the standard is: to avoid legal risk, websites and other digital experiences must conform with the Web Content Accessibility Guidelines (WCAG)—usually with version 2.1 level AA. So, there’s really no reason to wait for the rulemaking to get started.

Organizations should know that when courts do take these cases all the way to a decision, the timeline for compliance is very short. In some cases, those found non-compliant will have no more than a year in which to become compliant. The question is: wouldn’t you rather control your own compliance timeline? If you start now, you’re in control. If you’re taken to court, you lose control.

Then the other point to make is, stop digging. Stop trying to unearth every possible issue that may exist on your website or digital property—it’s an easy way to get overwhelmed fast. Instead, start by making sure everything new that goes onto your website is accessible from the beginning. That’s the cheapest, most effective, most efficient way to comply with the law and to make yourself open to all of the nearly 2 billion people with disabilities worldwide. And then, by adding a feedback mechanism to your website, you can get help from within that community to determine where to focus your efforts when it comes to what already exists.

Level Access: The message we share with organizations is: stay agile. Focus on the key tasks users or customers are trying to accomplish in your digital experience and start fixing there.

Eve Hill: Exactly!

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About Eve Hill

Eve Hill is a partner at Brown Goldstein & Levy and founder of Inclusivity Strategic Consulting. Eve has decades of experience implementing the Americans with Disabilities Act and other disability rights laws through consultation, technical assistance, training, guidance, and enforcement. She has served as a senior federal government official at the Department of Justice Civil Rights Division, as the Director of District of Columbia Office of Disability Rights, at the Burton Blatt Institute, and in academia, nonprofit, and private practice. She also has experience helping entities go beyond compliance to include disability as part of their diversity, equity and inclusion efforts. She is the co-author of a treatise and a casebook on the ADA.

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