New research shows the ways lackluster—or nonexistent—accessibility features on retailer websites continue to make retailers vulnerable to a growing wave of web accessibility lawsuits. And so far, the courts are not offering much guidance to retailers.
The number of such lawsuits in the United States exceeded 10 per day in 2021, a 15% increase compared with 2020, according to a year-end analysis from UsableNet Inc., a web accessibility technology provider. In total, the research found, U.S. plaintiffs filed 4,055 web accessibility lawsuits in 2021, up from 3,503 in 2020.
Retailers received 74% of web accessibility lawsuits in 2021, including 25% of the cases involving mobile apps. 20% of Digital Commerce 360 Top 500 e-retailers received digital accessibility lawsuits in 2021, and more than 80% of the Top 500 had received such suits over the past four years, UseableNet found.
To identify cases involving digital properties, UsableNet reviews all lawsuits filed in federal courts under the federal Americans with Disabilities Act and in California under the Unruh Civil Rights Act—more than 12,000 cases in 2021.
The ADA, signed into law in July 1990, prohibits discrimination based on physical or mental disabilities. Similarly, the Unruh Act, enacted in 1959, bans discrimination in California based on sex, race, color, religion, ancestry, national origin, age, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status in California.
Those laws do not spell out detailed regulations for retailer websites and other consumer-facing sites. The legal standard is that websites must be “meaningfully accessible” to all shoppers. That includes people with blindness, visual impairment, seizure disorders, attention deficit hyperactivity disorder (ADHD) or other disabilities.
A lawsuit against Winn-Dixie Stores Inc.—which has been in the courts since 2017—might have clarified how (if at all) the ADA applies to retailer websites. But it didn’t.
On April 7, 2021, a three-judge panel of the 11th Circuit Court of Appeals in Florida ruled that Winn-Dixie—a brand owned by Southeastern Grocers, a grocery retailer co-op—didn’t violate the rights of the blind plaintiff under the ADA. In doing so, the appeals court overturned a previous lower-court injunction against the retailer ordering it to make its website more accessible.
That April decision could have been a legal landmark and good news for online retailers. However, the plaintiff appealed the case to the full 12-judge court. On Dec. 28, 2021, the justices canceled the April ruling. That’s because the original injunction expired while the appeal was pending, making the issue “moot.”
That means the 11th Circuit now offers no legal guidance on the topic of web accessibility, says Christian Gunneson, a partner with Wood Smith Henning & Berman LLP.
“The state of play is that the 11th Circuit has left us with more questions,” he says.
A spokesman for Winn-Dixie declined to comment on the case.
Wood Smith Henning & Berman represents retailers and other companies in web accessibility lawsuits.
Despite arguing that the ADA does not cover its website, Southeastern Grocers eventually implemented “the relevant portions” of WCAG 2.0. The retailer also states that its website is periodically tested with assistive technology such as screen readers and screen magnifiers, and with users with disabilities who use these technologies. The retailer co-op says it also appointed an internal web accessibility coordinator to oversee its digital operations and ensure they are accessible.
Why retailers are vulnerable
Retailers face the bulk of web accessibility lawsuits for several reasons, says Jason Taylor, chief innovation officer at UsableNet. Among the causes are the complexity of retail sites and the enormous number of changes they undergo daily, he says. The complexity and rate of change increase the chances for merchants to make mistakes updating their sites or adding third-party technology, he says.
Plaintiffs’ attorneys aren’t necessarily looking to file suits against large deep-pocketed corporations. Of the 1,664 cases filed in federal courts from January through June 2021, 1,115 (67.0%) targeted retailers and other kinds of companies with less than $50 million in annual sales. Plaintiffs filed 549 (33.0%) cases against companies with more than $50 million in revenue.
How retailers can protect themselves
Brett Cohen, a partner at the law firm Nelson Mullins, says his clients face such suits at a rate of about one every other week. And the players are familiar.
“You always see the same plaintiffs and the same firms,” Cohen says. He says the plaintiffs’ lawyers appear to cut and paste their filings from templates. Sometimes, they forget to change the plaintiff’s name from one suit to the next, he adds. One plaintiff Cohen is aware of had filed 84 web accessibility lawsuits, he says.
Whether the cases have merit is a matter of opinion, Cohen says.
“Could someone be in technical violation of the ADA? Sure,” Cohen says. But in many cases, the website problems in question are unintentional and temporary, he says.
He recommends retailers hire a website developer familiar with web accessibility and a lawyer who understands the ADA. Retailers should then regularly assess the state of the site’s accessibility and fix them quickly, Cohen says.
Nelson Mullins represents retailers and other companies in web accessibility lawsuits.
In addition, Cohen says retailers must document all the steps they take to make their websites accessible and keep them that way. Doing that, he says, shows that a retailer is serious about web accessibility, even if its efforts are imperfect. In court, retailers that show a judge that they have their “ducks in a row” have a better chance of getting the lawsuits dismissed than those that don’t document their accessibility efforts.
William Goren, an attorney, consultant and blogger who specializes in ADA-related issues, says the best defense is for retailers to design their websites with accessibility in mind. As a guide, he says merchants and their web designers follow the World Wide Web Consortium’s widely used Web Content Accessibility Guidelines, Version 2.1 (WCAG 2.1), standards.
“Design your website from the get-go in a way consistent with WCAG 2.1,” Goren says. He adds retailers must remember that WCAG 2.1 is merely a set of guidelines, not regulations or statutes. So, the guidelines don’t provide complete protection from web accessibility lawsuits.
“Remember that even with WCAG 2.1, you may still have a situation where there is a lack of meaningful accessibility for a particular individual even if the WCAG 2.1 guidelines are satisfied. People with disabilities seeking access to the Internet generally fall into one of several categories: deaf or hard of hearing; blind or visually impaired; and voice dictation users,” Goren says.
Will the Supreme Court decide?
Gunneson says there are good reasons to conclude that web accessibility lawsuits have no merit. He says the cases are always legally questionable because the ADA does not name websites as “places of public accommodation” covered by the Act. However, he says retailers can be at risk if web inaccessibility compromises consumers’ ability to buy from stores.
Like Cohen, Gunneson says retailers should retain an attorney who understands the ADA and a website developer well-versed in making sites accessible to people with disabilities.
Both Cohen and Gunneson say the U.S. Supreme Court will eventually take up the issue of web accessibility. And they say the Winn-Dixie case could end up before the high court.
In 2022, Cohen adds, it would be a good idea for the retail community to “keep all eyes on Winn-Dixie.”