In this article, we survey recent developments defining the legal landscape for US organizations’ digital accessibility obligations in 2024. As we explain below, lawsuits are accelerating, and in a major recent development, the Attorney General signed a final version of regulations for web content and mobile app accessibility under Title II of the Americans with Disabilities Act (ADA).
Evolving legal requirements for accessibility compliance in 2024
The legal landscape for digital accessibility in the United States is governed by a number of different pieces of state and Federal legislation including:
- Americans with Disabilities Act (ADA) Title II (covering state and local government entities) and Title III (applicable to all public accommodations). Learn more about ADA Web Accessibility Compliance.
- Rehabilitation Act Section 504 (for recipients of federal funding) and Section 508 (covering technology provided by federal agencies and federally funded organizations). Learn more about Section 508 Standards and Compliance.
- Air Carrier Access Act (governing the primary websites of airline carriers and airport kiosks).
- State non-discrimination laws including
- California’s Unruh Act. Learn more about the differences between Unruh and ADA here.
- California Assembly Bill AD 1757, a proposed law that would adopt Web Content Accessibility Guidelines (WCAG) 2.1 level AA as the accessibility standard for business establishments’ digital assets.
- Affordable Care Act Section 1557 (covering healthcare organizations).
Additionally, US companies that do business abroad may be impacted by global accessibility laws, including the European Accessibility Act (EAA) and its impending June 2025 deadline. You can find more information on the EAA in our resource center.
This collection of legislation can make it difficult for businesses to know where to begin improving accessibility—and which standards to follow. As the 2024 trends explained below indicate, US courts and administrative agencies are still endeavoring to clarify the precise scope of the ADA and other digital accessibility requirements.
Three key insights for digital accessibility compliance in 2024
For most of the existence of the ADA, no regulations existed to provide covered organizations with digital accessibility requirements; enforcement has largely been left up to the Department of Justice. For many years, the DOJ avoided issuing explicit rules but did exhibit some ad hoc legal enforcement activity. In 2023, the DOJ released a 10-year report on ADA Title II showing that many agencies are still not compliant. Subsequently, the DOJ resumed the Title II rulemaking process, leading to the announcement on April 8, 2024 of the Title II Web and Mobile App Accessibility Final Rule. Although this rule provided much-needed clarity, the rule does not apply to Title III, and at the time of writing the DOJ has not issued plans for providing equivalent guidance for organizations covered by Title III.
Insight One: ADA website compliance and other lawsuits are accelerating
ADA lawsuits have continued to accelerate for both physical facilities and digital assets, but the increased rate of digital accessibility litigation is particularly noteworthy. Federal lawsuits under the ADA are up over 300% from a decade ago, a figure that does not account for demand letters, state lawsuits, and other related actions.
[Total Number of ADA Title III Federal Lawsuits Filed Each Year January 1, 2013 – December 31, 2023. 2013: 2,722; 2014: 4,436 63% increase over 2013; 2015: 4,789 8% increase over 2014; 2016: 6,601 38% increase over 2015; 2017: 7,663 16% increase over 2016; 2018: 10,163 33% increase over 2017; 2019: 11,053 9% increase over 2018; 2020: 10,982 1% decrease from 2019; 2021: 11,452 4% increase over 2020; 2022: 8,694 24% decrease from 2021; 2023: 8,227 .5% decrease from 2022].
This illustration is provided by law firm Seyfarth Shaw LLP, which shares helpful data and reporting on the latest trends in ADA Title III lawsuits.
California and New York are the leading states for ADA lawsuits. Both states offer damages beyond the court/attorney fees and injunctive relief available under federal law.
An important theme of recent lawsuits is that prior settlements promising to make a website accessible will not be a bar to a subsequent suit, nor will “in process” improvements moot a case. However, a court consent decree may provide protection against subsequent lawsuits.
Insight Two: Ambiguity remains for ADA website compliance under Title III
What exactly constitutes a public accommodation under Title III? With a broad set of qualifying accommodations include places of lodging, food/drink establishments, and places of recreation, we advise that any business that opens its doors to the public should consider its activities potentially governed by ADA Title III. Recent cases have indicated that even charity or investor relations websites that provide only general information may still be covered by the ADA.
What about virtual businesses without a clear physical location?
Case law is currently split on this question, with federal appellate courts diverging. The 9th, 11th, and 3rd Circuits have ruled that accommodations must refer to physical locations, while the 1st circuit has ruled that accommodations need not be physical.
Insight Three: Recent case law is split on standing for ADA plaintiffs
Courts have found that if a plaintiff could never use the service in question, the suit may be dismissed for lack of standing.
In 2023, the Laufer v. Acheson case provided new evidence for how Courts will interpret serial plaintiffs and “testing” plaintiffs (who are testing accessibility without necessarily having an intention patronize the business in question).
Federal circuit courts are currently split on this question. The 1st, 11th, and 4th Circuits have ruled that plaintiffs need not have a desire to patronize a business in order to have standing to sue under the ADA. The 2nd, 5th, and 10th Circuits have ruled that encountering a barrier alone is not enough, and there must be a downstream consequence. New York federal trial courts dismissed multiple cases on standing grounds in 2023, ruling that plaintiffs must assert a concrete and particularized injury.
While the Supreme Court ultimately rendered Laufer v. Acheson moot and did not decide the underlying issue, Langer v. Kiser (9th Cir.) has the potential to provide greater clarity in 2024.
How can businesses improve website accessibility?
As the updates above illustrate, US legal and regulatory authorities have made some progress concerning how digital accessibility requirements will be expressed, evaluated and enforced, but there are still some areas of ambiguity. Businesses cannot assume that lingering legal ambiguity means they are protected, however, and the recent acceleration of ADA lawsuits across multiple states demonstrated the importance of maintaining accessible physical locations, websites, and other digital assets and services.
In this context, a proactive accessibility testing and remediation program is the best way to improve accessibility and reduce exposure to potential litigation under the ADA (or other legislation). Automated testing tools can be a valuable resource, but no automated solution can promise full conformance (most detect about 30-40% of WCAG success criteria violations). For this reason, these tools are best used in conjunction with a robust manual review process.
Technical manual accessibility review
An in-depth review of a digital resource against current best practices, this first step is designed to capture all variances from WCAG or other governing guidelines. In this initial phase, the focus should be on thoroughly documenting accessibility issues present in critical user flows and how their representative components contribute to the overall scope of risk for the website. While a comprehensive review of all website content is often impractical, a strategic initial review is critical for prioritizing efforts to improve accessibility.
Reporting and monitoring
Establishing a systematic approach to reporting is important for creating consistent metrics, determining who is affected by an issue, its severity, and how difficult it will be to resolve. Ideally, this reporting process should be integrated with expert knowledge so that issues can be tied directly to proven remediation practices.
Moving forward, automated tools can be an ideal fit for ongoing monitoring, tracking a sufficient sample of issues to evaluate ongoing remediation progress and avoid regression.
TPGi offers an array of accessibility testing tools to help you get started.
Usability testing with people with disabilities
After variances from relevant standards have been established, we recommend focusing on a more granular testing process focused specifically on the user experience, ensuring that the full user flow can be navigated, and employing testing from engineers and users with disabilities.
TPGi provides a range of services to support improving the user experience for people with disabilities, including Assistive Technology user flow testing and usability testing with people with disabilities.
Accessibility Conformance Report/VPAT accessibility benefits
An Accessibility Conformance Report (ACR) based on a VPAT (Voluntary Product Accessibility Template) is a standard reporting instrument for accessibility, developed by the Information Technology Industry Council (ITI) to communicate the level of conformance. VPATs enable reporting against up to three significant recognized accessibility standards:
- VPAT 2.5 508: Section 508
- VPAT 2.5 EU: EN 301 549
- VPAT 2.5 WCAG: WCAG 2.0, 2.1, 2.2
- VPAT 2.5 INT: combining all three standards.
An effective VPAT ACR must be created from a comprehensive accessibility review of a digital product. A VPAT ACR represents the accessibility of a product at a given point in time, so it’s important to have a process in place to regularly monitof the product for accessibility, making necessary updates to the product to ensure accessibilty is maintained and improved, and to update the VPAT ACR to reflect changes.
You can learn more about VPATs, their benefits, and the answers to some frequently asked questions in our VPAT Template guide.
Learn more about accessibility compliance and a typical roadmap to website accessibility
As the developments discussed above illustrate, digital accessibility is constantly evolving, and keeping up with relevant rules and best practices is a genuine challenge for many different businesses.
We developed our legal update webinar on digital accessibility in 2024 to help.
The law firm Seyfarth Shaw LLP’s Partner, Kristina Launey, and Associate, Ashley Jenkins, joined TPGi Director of Sales Mark Miller for a detailed discussion of the key trends and legal developments highlighted above.
Sign up to access the on-demand recording here.
An early version of this article was published containing some obsolete information that did not reflect legal updates that happened since the legal update webinar in February 2024. We apologize for any inconvenience caused.
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