Digital Accessibility Under ADA

The ADA is the first comprehensive federal civil rights law that protects the rights of individuals with disabilities. It includes several titles, and the DOJ and private plaintiffs handle enforcement. Title III pertains to public accommodations, which generally means businesses that provide products and services to the public. While the law and the DOJ’s Title III regulations specify 12 categories of businesses, the term "public accommodation" is interpreted broadly.

Title III prohibits public accommodations from discriminating against individuals with disabilities in the provision of goods and services. It also requires them to ensure effective communication with these individuals by promptly offering, when necessary, auxiliary aids and services in accessible formats. Accessible electronic and information technologies, such as websites and mobile applications, are examples of auxiliary aids.

When the ADA was enacted, websites were not yet common. In 1996, the DOJ issued an advisory opinion stating that public accommodations must ensure their websites are accessible to people with disabilities to facilitate effective communication, in accordance with Title III of the ADA.

The DOJ then actively enforced Title III against public accommodations by Litigating inaccessible websites often leads to consent orders. The agency also filed amicus briefs and statements of interest in other cases.

Since then, many federal and state courts have interpreted Title III of the ADA, along with related state laws like California’s Unruh Civil Rights Act and New York’s Human Rights Law, to include websites. Although there are inconsistencies among court decisions about whether websites qualify as public accommodations under the ADA and state laws, more courts than not have sided with plaintiffs, requiring businesses to make their websites accessible. Therefore, generally, companies must ensure their websites—like physical spaces—are accessible to individuals with disabilities under Title III of the ADA.

The DOJ has never established a consistent technical accessibility standard for companies to follow to ensure websites and other digital assets are accessible to individuals with disabilities. However, DOJ has taken enforcement actions against companies for inaccessible websites, arguing that the companies failed to meet ADA’s effective communication requirement. Additionally, over the past decade, private lawsuits claiming that business digital assets are inaccessible have increased significantly. Plaintiffs often allege violations of both the ADA and related state laws, which frequently also allow damages.

The WCAG (Web Content Accessibility Guidelines) standard is a set of international guidelines for making digital content accessible to people with disabilities. The latest version is WCAG 2.2, based on four core principles: Perceivable, Operable, Understandable, and Robust (POUR). Each principle has specific, testable success criteria that are graded at three conformance levels: A, AA, and AAA. This standard is increasingly cited in litigation on this question in US courts. As a result, companies have increasingly relied on the WCAG standard to make digital assets accessible.

Most companies seek to comply with the intermediate conformance criteria known as Level AA.

The DOJ has sought to enforce website accessibility during Democratic administrations and was active during the Biden era. In 2022, DOJ issued guidance on making websites accessible.

However, the guidance lacked technical accessibility standards and did not introduce anything new for companies. In 2024, the DOJ issued final regulations that set accessibility requirements for websites and mobile applications of state and local governments under Title II of the ADA, citing WCAG 2.1 AA as the standard.

Experts expected DOJ would use the Title II rulemaking as a model for amending the Title III regulations to specify WCAG 2.1 AA as the required technical standard for public accommodations. The Biden administration ran out of time to pursue that initiative.

It is not expected that DOJ will amend its Title III regulations over the next four years. DOJ is unlikely to pursue much enforcement activity, as the current administration has deprioritized enforcement of civil rights laws. This will continue to perpetuate and increase private litigation risk for businesses.

Litigation Risk

Of the top one million home pages on the internet, 95 percent have accessibility barriers that interfere with people with disabilities' ability to use them, according to a 2025 report.

These barriers have led to a surge in litigation under Title III of the ADA since 2016, with nearly 2,500 federal lawsuits filed across the United States in 2024.

Given the filing pace this year, 2025 is likely to surpass that number by nearly 20 percent, with 2,019 lawsuits already filed in the first half of 2025.

Most cases are filed in New York and Florida, where plaintiffs can receive damages. California, which also allows damages, saw fewer federal lawsuits in 2024. However, federal lawsuits were also filed in Illinois, Minnesota, and Pennsylvania. Plaintiffs are also increasingly filing in state courts rather than federal courts because state laws often permit damages, unlike the ADA, which only allows injunctive relief. In addition to websites, more cases challenge the inaccessibility of mobile applications.

The main legal question in litigation is whether online-only businesses without a physical public accommodation, like a brick-and-mortar location, are covered by the ADA. Only the U.S. Court of Appeals for the Ninth Circuit has directly addressed this issue, ruling that businesses’ websites are covered if they have a connection to a physical location. Other circuits have hinted at their positions: the U.S. Courts of Appeals for the First, Second, and Seventh Circuits suggest that Title III may apply to the websites of online-only businesses, while the Third and Sixth Circuits indicate that it applies only to websites of businesses with a link to a physical place.

There has been debate about which technical accessibility standard meets the effective communication requirement under ADA. Courts, the DOJ, and other federal agencies have used the WCAG standard. Courts in Title III cases may also apply the same standard to business websites.

While most accessibility cases begin with a demand letter, some plaintiffs choose to go straight to court by filing a complaint. Some cases are class actions, including nationwide class actions, which may be subject to the U.S. Supreme Court’s recent decision in Trump v. CASA, which casts doubt on lower courts' ability to issue nationwide injunctions.

Most cases end in settlements, where the company agrees to make its website and mobile app accessible within a specified timeframe and pays the plaintiff’s attorney fees and damages.

Because businesses with inaccessible websites face limited defenses and paying a relatively small amount to a plaintiff is less expensive than defending a lawsuit, very few cases go to trial. The one successful defense is claiming that the plaintiff lacks standing to challenge the website's inaccessibility because they are ineligible to access the business, cannot prove that the alleged barriers actually hindered their use of the site, or cannot demonstrate an intention to visit the website in the future.

The Path Forward

Digital accessibility is widely recognized as a civil rights issue. The evolving legislative landscape reflects ongoing efforts to balance accessibility, clarify technical accessibility requirements, and ensure compliance with the law. Prioritizing inclusive digital design and adhering to recognized standards such as WCAG remains a best practice for businesses aiming to provide equitable digital experiences and reduce legal risk.

Despite the increasing risk of litigation, businesses can take steps now to make their websites and mobile applications fully accessible to individuals with disabilities and mitigate the risk of receiving a demand letter or lawsuit. Best practices to mitigate accessibility legal risks include:

• Ensure digital assets are accessible through inclusive design and remediation. Businesses should develop new websites or mobile apps by integrating WCAG 2.2 AA-compliant code to ensure accessibility. Ensure existing websites and mobile apps are fully accessible to individuals with disabilities by hiring a qualified accessibility consulting firm to conduct an accessibility assessment.

  
  

• If accessibility issues are identified, they should be remediated to meet WCAG 2.2 AA standards. After remediation, a monitoring routine should be established.

• Develop an ADA risk management program. A comprehensive ADA risk management plan can serve as a defense if a company faces litigation.

• Develop and implement a digital assets compliance policy.

• Ensure that employees receive appropriate training, both technical and compliance.

• Implement procedures to ensure consistency in customer service processes for individuals with disabilities and to provide warm handoffs to technical staff who can assist with any digital barriers they may encounter.