By: Marque N. Staneluis, Esq.
Introduction
In recent years, a surge of Americans with Disabilities Act of 1990 (“ADA”) Title III website accessibility complaints has flooded the federal court system. While the ADA is a critical tool for ensuring equitable access, many of these cases lack genuine merit. Instead, they exploit legal ambiguities, overwhelming small businesses, as well as the federal courts, with predatory lawsuits. A prime example of this is Primitivo Robles v. The Other Side Dispensary, LLC, a case emblematic of the broader issue of invalid ADA website complaints. This paper explores this case to highlight how these lawsuits pose a threat not only to legitimate accessibility advocacy but also to emerging industries like cannabis in New York and New Jersey. Further, it argues that ADA website complaints have a significant cybersecurity and cybercrime dimension. This paper is broken down into three sections which (a) explains what and how a website should be accessible and what does it mean not to be, (b) looks at a case through the lens of the Robles claim, and finally (c) concludes with one of several recommendations to resolve the cybersecurity loophole.
ADA Title III
The ADA was enacted to prohibit discrimination against individuals based on their disabilities. The ADA defines disability as “a physical or mental impairment that substantially limits one or more major life activities.” Some of those major life activities are seeing, hearing, speaking, learning, communicating, and walking. While enacting this legislation, Congress declared that “physical or mental disabilities in no way diminish a person’s right to fully participate in all aspects of society, yet many people with physical or mental disabilities have been precluded from doing so because of discrimination.” In the physical world this is bathroom stalls that are not wheelchair accessible or a lack of handicap parking. In the virtual world, From the ratification of the ADA until 2017, Title III offenses were limited to physical structures and to the limited list of private entities whose operations affect commerce that are classified by one of its twelve definitions. Each definition encompasses a number of business types that provide similar services, such as “(B) a restaurant, bar, or other establishment serving food or drink;” “(E) a bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment;” or even “(F) a laundromat, dry-cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a healthcare provider, hospital, or other service establishment.” Examples of (B) would be Five Guys, Hooters, Domino’s Pizza, or a local diner. Examples of (E) would be a Winn-Dixie, Hobby Lobby, or local flower shop. Examples of (F) Winn-Dixie’s Pharmacy, Metropolitan Life Insurance, or any lawyer’s office. To state a claim for relief under Title III of the ADA, a plaintiff “must allege (1) that [he] is disabled within the meaning of the ADA; (2) that defendants own, lease, or operate a place of public accommodation; and (3) that defendants discriminated against [him] by denying [him] a full and equal opportunity to enjoy the services defendants provide.”
Appellate courts are split as to whether the provisions of the ADA, mainly those involving places of public accommodation under Title III, apply to online technology such as websites. The Third, Sixth, Ninth, and Eleventh Circuits follow the approach that Title III applies to the services of a place of public accommodation and not limited to services only in the place of accommodation. In other words, Title III applies if there is sufficient nexus between the website and the physical location. However, if the physical location is not a place of public accommodation, then neither need be its website. This is in contrast to the First and Seventh Circuit which broadly applies the ADA and does not limit its interpretation to a physical structure. The United States District Court, Southern District of New York, has started leaning toward following the First Circuit, but in the September, 2024 decision handed down by Laura Taylor Swain, Chief United States District Judge, in Meija v. HIgh Brew Coffee, Inc, this trend has been restrained. In her decision, Judge Swain stated the “Second Circuit has not squarely addressed the question of whether a website, absent a connection to a physical location, constitutes a place of public accommodation.” She then ruled “the Court finds that a stand-alone website is not a place of public accommodation under Title III of the ADA. Plaintiff thus fails to state a claim on which relief may be granted under the ADA. Because Plaintiff fails to state a claim under the ADA, Count III’s request for declaratory relief is also dismissed.” This is the latest precedent in New York federal courts, and although not controlling is strongly influential in what circumstances must a website be considered a place of public accommodation in New York.
ADA website litigation has evolved into a form of legal and financial exploitation that parallels cybercrime. These cases are frequently initiated by high-volume plaintiffs or law firms relying on automated tools to identify “violations.” This strategy mirrors the methodology of cybercriminals, who deploy bots to find vulnerabilities in software or systems.
Just as cybercriminals exploit software loopholes, opportunistic litigants exploit the lack of detailed federal regulations on website accessibility standards under the ADA. ADA Title III website accessibility claims have grown exponentially with over 4,000/year since 2021, and New York eclipsing all other states. In September 2024, there were 342 Lawsuits filed, with 65% of them filed in New York. More importantly, these claims are filed by a handful of plaintiffs and firms. A small group of plaintiffs is responsible for a significant portion of lawsuits filed under the Americans with Disabilities Act (ADA), 31 Plaintiff Firms File 50% of ADA Website Accessibility Lawsuits. Many ADA lawsuits are resolved through settlements because defending these cases can cost small businesses tens of thousands of dollars. This “settle or go bankrupt” dynamic is akin to ransomware attacks. Emerging markets, such as the cannabis industry in NY and NJ, are disproportionately affected due to their limited resources and regulatory challenges. These businesses already navigate complex state and federal laws, making them prime targets for predatory litigation. Even with settlements under $25,000, that would still mean that these cases will cost approximately $100 million. Although small compared to the $42 billion from ransomware attacks in the United States, it is yet another potential cyber attack vector that businesses and their IT staff has to worry about.
As I outlined in my 2021 paper “The ADA and website accessibility: a technical problem without a technical understanding,” website accessibility cases are rarely decided on the merits of the claim. The courts have consistently taken the position as was indicated in the Winn-Dixie 2017 court, stating that “[r]emediation measures in conformity with the WCAG 2.0 Guidelines will provide Gil and other visually impaired consumers the ability to access Winn-Dixie’s website and permit full and equal enjoyment of the services, facilities, privileges, advantages, and accommodations provided through Winn-Dixie’s website.”
WCAG
Web Content Accessibility Guidelines (“WCAG”) 2 is developed through the World Wide Web Consortium (“W3C”) in cooperation with individuals and organizations around the world, with a goal of providing a single shared standard for web content accessibility that meets the needs of individuals, organizations, and governments internationally. The guidelines are a set of internationally recognized standards developed through the Web Accessibility Initiative (“WAI”). WCAG provides guidelines for making web content more accessible to people with disabilities, including those with visual, auditory, cognitive, and motor impairments. WCAG is often referenced in legal frameworks, including: (a)
Americans with Disabilities Act (“ADA”) in the U.S. (as applied to websites via case law), (b) Section 508 of the Rehabilitation Act (this applies to U.S. federal agencies and contractors), (c) European Accessibility Act (EAA) and EN 301 549 (European Union), and (d) other national and regional accessibility laws worldwide.
Key aspects of WCAG focus on being (a) perceivable, (b) operable, (c) understandable, and (d) robust.
- Perceivable – Content must be presented in a way that users can perceive, including alternatives for non-text content (e.g., captions for videos, text descriptions for images).
- Operable – Users must be able to interact with and navigate the content, ensuring functionality via a keyboard and providing sufficient time for interactions.
- Understandable – Information and user interface components must be clear and predictable.
- Robust – Content must be accessible across various technologies, including assistive devices.
Despite these guidelines, there is no set standard for how compatible a website has to be in order to be ADA compliant. What appears in complaints are elements or attributes that are missing or incomplete. In some cases, the lack of these elements or attributes are very detrimental to a disabled person’s use of a site because their screen readers cannot extract conveyable information without these values. An example of this is a picture (“image” in HTML) that does not contain the title attribute. This attribute contains the text description of the picture that appears when a visual user mouses over the image, it is lao what screen readers use to describe the picture in audio. However, there are also many references to elements or attributes missing that may or may not create issues for the screen readers. One such HTML construct is the ARIA attributes. Accessible Rich Internet Applications (ARIA) is a set of roles and attributes that define ways to make web content and web applications (especially those developed with JavaScript) more accessible to people with disabilities. Based on this definition, it should be obvious that it should be used without fail, and many website accessibility evaluation services like Google Lighthouse and WAVE will report on these when missing. Ironically, the first rule of ARIA use is “If you can use a native HTML element or attribute with the semantics and behavior you require already built in, instead of re-purposing an element and adding an ARIA role, state or property to make it accessible, then do so.”
These claims do contain accessibility evaluation reports that reflect the count of missing parts in order to support the claim that the site is not accessible to their plaintiff on the day in question. This is a step forward in making the claims more substantive, but it does not actually prove the site was not accessible as the plaintiff claims. The real world equivalent would be similar to indicating that NOT ALL of the parking spots are handicap accessible. In the real world, with the rare exception of less than 10 spots, the number of accessible spots does not exceed 10%. So to indicate that certain elements and attributes are not present is equivalent to pointing out the non-accessible spots with no regard to the number or nearness of the accessible ones.
Come back soon to read Part Two
