Retail is the number one industry targeted by lawsuits on ADA websites

There are 54 million Americans with disabilities, which is the third largest market segment. And like their able-bodied counterparts, they shop, bank, and conduct much of their lives online. Website owners should ensure that websites and apps are accessible by following accessibility best practices such as coding for keyboard navigation and adding captions to videos.

In physical stores, Title III of the American Disabilities Act (ADA) mandates ramps for customers with reduced mobility or Braille signs for the visually impaired. Specifically, Title Three states that businesses open to the public or places of public accommodation cannot discriminate against persons with disabilities.

In March 2022, the Department of Justice issued new guidelines reaffirming that digital apps and websites are subject to the same guidelines. If a website is open to the public, it is a public hosting location under the ADA. When a website or app is inaccessible, customers can file an ADA-based lawsuit against the offending company.

Retail companies get the most lawsuits

In 2021, lawsuits against inaccessible apps and websites averaged about 10 cases per day. In 2022, ADA-based lawsuits for websites and apps are increasing quarter over quarter. Interestingly, the growth of ADA-based suits for digital is occurring even as the set of ADA-based cases for brick-and-mortar would decline. For example, in the first weeks of 2022, plaintiffs filed 100 lawsuits against companies over inaccessible digital properties. Based on the average filing rate at the end of June 2022, there could be up to 4,455 ADA-based cases filed for websites and apps this year.

E-commerce websites are among the hardest hit, accounting for 79% of all cases, surpassing all other industries. No e-commerce business, regardless of size, is immune. So far in 2022, 73% of lawsuits have been against companies with less than $25 million in revenue. Likewise, many large retail companies have already received ADA-based digital suits. In 2022 alone, 50 complaints have already been filed against the top 500 e-commerce retailers, and 417 of the top 500 retailers have received ADA-based digital lawsuits over the past four years.

What does all this data tell us? Simply put, in 2022 businesses large and small are called upon to make their website and apps accessible. For e-commerce businesses, accessibility is key or you run a higher risk of being sued.

Why retail?

Many of us shop online, from food to clothes, from electronics to books. For some, it’s convenient; for others it is necessary. For specific mobility issues, it may not be possible to regularly move outdoors. This consumer therefore depends on timely and accessible online shopping options. Users quickly know when a website owner hasn’t designed with accessibility best practices. Checking the accessibility of a website can be as simple as checking the price of an item on sale.

There is also a practical reason why e-commerce is targeted more than other industries. First, digital stores are easy to find and visit. For example, a blind person can surf the web and quickly assess the usability and accessibility of websites. The ADA regulates retailers and e-commerce websites are incredibly dynamic. With the rate of change and the standard of new releases in the industry, it can be almost too easy to make accessibility mistakes. Complainants can find these errors, document them, and add them to an ADA lawsuit.

Finally, many online retailers have offline stores familiar with the ADA, so counsel has a process to resolve such claims. Most ADA-based application and web accessibility lawsuits resolve quickly and in favor of the plaintiff.

Why is it important?

As noted at the beginning of this article, people with disabilities are the third largest market segment. They represent $1 billion in the market, while their friends and family members make $1 trillion. If a user with a disability does not have a good experience on a website, they will tell their friends and family, who will likely stop using the site as well. An inaccessible website can not only impact a retailer’s revenue, but also its reputation and the overall standing of the community if the disabled user takes legal action.

What can businesses do?

If you want to improve your digital accessibility right now, we recommend the following four steps.

  • Take inventory of your websites, apps, PDFs and media files (including videos and podcasts)
  • Run an automated test to find easy-to-spot, high-risk accessibility issues
  • Reach out to your website team (internal or external) to fix issues found during automated testing
  • Perform user testing with people with disabilities, including those who are visually impaired and use screen readers, because they are the ones who bring the most lawsuits.

The final step we mention here, employing testers from the disability community as part of your testing program, is critical. And a word of the wise, don’t believe in accessibility shortcuts like widgets. To find out if a website is accessible to people, you need real people to test it, not AI. Websites using accessibility widgets faced 400 lawsuits from January to June 2022.

These four initial steps will allow you to troubleshoot high-risk issues and understand the current state of your digital presence. Plus, you’ll be in a better position to avoid receiving an ADA-based digital accessibility lawsuit. Then the real accessibility work can begin, with some basic remediation and awareness of digital accessibility and inclusion within your organization.

In 2022, ADA-based private lawsuits are raising awareness of the digital inclusion shortcomings companies present on their websites. Until the US Congress and the DOJ give website owners a clear set of guidelines for making websites accessible and ADA compliant, lawsuits in this area will increase. A company’s best bet to avoid lawsuits is to be proactive about digital accessibility.

Jason C. Taylor is the Chief Innovation Strategist and Advisor to the UsableNet CEO with nearly 20 years of experience in ergonomics and accessibility. He is a global technology leader for multi-channel customer engagement, actively advising large companies on how to extend their brands across multiple channels for all users. He has been an active member of the accessibility and usability communities since 2001, which began with prominent partnerships between UsableNet, Macromedia (now Adobe) and The Nielsen Norman Group. Recent conferences include the ICT Testing Symposium 2022, CLE Credited Strafford Webinars, Neilsen Norman Group One-Hour Lectures, Digital Accessibility Legal Summit 2021, AccessibilityPlus Global Conference 2021 and many more commitments and private company training and continuing education.

About William G. Patrick

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