In recent years, the Americans with Disabilities Act has become a significant source of confusing and controversial litigation over website accessibility. This confusion and controversy stems from the fact that the Americans with Disabilities Act and its accompanying regulations offer zero explanation as to how the Act applies to websites. Faced with a circuit split, due process concerns, and a lack of any meaningful technical guidance from administrative agencies, defendant website operators are desperate for clear guidelines for how to comply with the Americans with Disabilities Act. Adding to this desperation is a barrage of opportunistic lawsuits, dubbed “surf-by lawsuits,” being filed nationwide against thousands of businesses whose websites are not entirely accessible. Because courts are unwilling to declare a measurable level of accessibility that satisfies the Americans with Disabilities Act as a matter of law, these defendants are forced to either spend the tens of thousands of dollars required to litigate their cases all the way, or settle.

On the surface, it may seem like a good thing that these lawsuits are making the internet more accessible. However, the practical result of the current legal landscape is that almost every defendant will settle, regardless of how accessible its website is and regardless of whether any individual with a disability has actually been denied equal access. Most of the settlement agreements contain only a vague promise by the defendant to make the website more accessible. Furthermore, the disabled individual is unable to recover damages; only attorney’s fees are recoverable under the Act. This has led many to believe that the involvement of the disabled plaintiff is often pretextual. Rather than accept this flawed system, this author believes there are legal solutions to the confusion surrounding the Americans with Disabilities Act, which could be fairer to both defendants and individuals with disabilities.

Part I of this Note begins by providing some background on the Americans with Disabilities Act and the standards used for measuring website accessibility. Part II describes the current state of the law, including a discussion of the circuit split, due process concerns, and judicial articulations of what the ADA requires from a technical standpoint. Finally, Part III advocates how to move forward with resolving the circuit split and creating clear technical standards for website accessibility.

Included in

Law Commons