Why is ADA litigation at an all-time high?
The trend of rising federal lawsuits stemming from alleged violations of the Americans with Disabilities Act continued in 2019, spiking at an all-time high and serving as a cautionary tale for employers.
According to the Chicago-based law firm Seyfarth Shaw LLP, plaintiffs filed 11,053 such cases last year, 890 (8.8%) more than in 2018. That marked the highest since Seyfarth began tracking these suits in 2013, when there were only 2,722. The Title III lawsuits were filed on all grounds—including issues with websites and mobile applications, physical facilities, service animals, sign-language interpreters and more.
California (4,249), New York (2,635) and Florida (1,885) continue to lead the nation with the highest number of lawsuits in a landslide, as those states account for 84% of all the ADA Title III lawsuits. California and New York, in fact, in 2019 each broke their own records for the number of these types of lawsuits.
According to Kristina Launey, a partner in Seyfarth’s Sacramento, Calif., office and a member of the firm’s ADA Title III Specialty Team, the stats are “even more astonishing” considering they don’t include the large numbers of demand letters that never turn into actual lawsuits, nor lawsuits filed in state courts, of which there are many.
Launey says Seyfarth has seen the greatest growth over the past few years in lawsuits alleging that companies fail to ensure their websites and mobile applications are accessible to individuals with disabilities.
“Those lawsuits usually are brought by blind individuals claiming the website or mobile app is not coded so it can be read by their screen readers or other assistive technology,” she says.
Launey explains that the record-setting litigation also was fueled by the Department of Justice’s withdrawal of all rulemaking efforts in 2017 that would have provided guidance to companies on their obligations with respect to website accessibility.
Apart from website accessibility, the ADA litigation total also includes lawsuits alleging, for example, that business’ physical facilities are not accessible to individuals with disabilities, that they have refused to allow individuals with disabilities to have service animals or have not provided other means of effective communication to individuals with disabilities, such as sign-language interpreters.
Launey explains that there also have been a handful of actions brought against companies alleging their online employment applications were not accessible, which the plaintiffs claimed denied them equal-employment opportunity—for example, if a person who is not blind can apply for a job in the middle of the night, a blind plaintiff should be able to do the same, the reasoning goes—and violated fair employment laws.
“While that trend did not spread, many companies chose—especially if they were evaluating the accessibility of their public-facing websites—to evaluate their internal employment application and onboarding processes and make them accessible as part of the same or a companion effort,” Launey says.
There also have been some higher-profile lawsuits by employees alleging violations of Title I of the ADA and state fair employment laws, due to their employer’s alleged failure to provide internal computer systems that were accessible or compatible with the employees’ assistive technologies.
“HR departments and employers are wise to understand what it means for websites and other technologies to be accessible, and what assistive technologies individuals with disabilities may need to use those technologies, to be able to engage in a meaningful interactive process with employees,” Launey says.