Internet Accessibility Legal Guidelines are a Trap for the Unwary
6 minute read
July 31, 2025
By
Jonathan Bick
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intellectual property
The Americans with Disabilities Act (ADA) is applicable to internet sites ever since the term “place” as used by the ADA was found to be term of convenience (including the internet), rather than a physical location (See AMERICANS WITH DISABILITIES ACT AND THE INTERNET 10 Alb. L.J. Sci. & Tech. 205).
Internet accessibility guidelines have ameliorated internet ADA difficulties, however conflating internet accessibility guidelines with ADA violations is a trap for the unwary.
The ADA does not specifically define the term “disability”. Rather, the ADA (42 U.S.C.S. 12101 et seq. (1994)) defines disability in terms of physical impairments that significantly limit one or more life activities (42 U.S.C.S. 12112(a) (1994)).
Such a determination should be made with reference to measures that mitigate an individual’s impairment.
Thus, where an individual is taking measures to mitigate physical or mental impairment, effects of those measures must be considered when judging whether the individual is substantially limited in a major life activity. See Sutton v. United Air Lines, Inc., 119 S. Ct. 2139 (1999).
Internet Accessibility Guidelines: Section 508 and WCAG
ADA-related internet access guidelines have been propagated by public and private entities. For example, the Access Board is an independent federal agency established by the Rehabilitation Act of 1968 (Pub. L. 90-480, 82 Stat. 718 (1968)). Its stated mission is to promote accessibility for disabled individuals.
In part, the efforts of this agency have resulted in Section 508 which is a federal law that mandates accessibility of internet content for people with disabilities. It requires federal agencies to ensure their electronic and information technology is accessible to both employees and the public.
Specifically, it applies to federal agencies, their contractors, and organizations receiving federal funding. It covers access to websites. It is not generally applicable to most internet sites.
Another set of internet access guidelines was proposed by the World Wide Web (WWW) Consortium (W3C). W3C is a private non-profit organization and is often considered a large business lobbying group. Only members may participate in the W3C.
The W3C membership fee ranges from US$1,000 to US$77,000. Not surprisingly W3C actions appear to favor large corporations, such as the promulgation of Web Content Accessibility Guidelines (WCAG).
WCAG refers to options designed to improve impaired internet users’ access to web content. However, WCAG should not be conflated with the ADA. Failure to comply with WCAG is not synonymous with violating the ADA.
WCAG has limited applications. It is not a statute; it is merely a set of guidelines adapted from the application of certain governmental agencies to help safeguard web accessibility. Specifically, Section 508 mandates federal agencies to comply with many (but not all) standards set forth in WCAG 2.0 AA levels.
Litigation Trends and ‘Nuisance’ Lawsuits
A “cottage industry” for internet ADA related lawsuits has arisen. Plaintiffs law firms file lawsuits against businesses for alleged website accessibility violations under the Americans with Disabilities Act (ADA).
Typically, the plaintiffs’ attorneys in these cases use automated accessibility testing tools to check a potential defendant’s internet site. These tools are usually based on WCAG recommendations and other compliance guidelines.
Such reports typically will list “issues.” For example: A video plays longer than 5 seconds, without a way to pause it.
The report may then imply (but not state) that such an issue violates WCAG 2.1 A 2.2.2 and Section 508 (2017) A 2.2.2. This implication may be true but is utterly misleading.
What the unwary may fail to understand is that neither WCAG nor Section 508 issues do not per se result in ADA violations. As noted above, the reason is two-fold. First WCAG is just guidelines from a lobbying group, and second Section 508 generally does not apply to most non-governmental internet sites.
The lack of clear guidance and the potential for large settlements have powered several law firms to specialize in website ADA lawsuits. Most of the internet lawsuits are settled for a few thousand dollars or less (far less than the cost of litigation) and hence most are treated as nuisance lawsuits.
State Law and Federal Guidance
WCAG are not incorporated in any state or federal statutes for general application. WCAG is referenced by some statutes. For example, New Jersey law Act A4856 mandates that educational institutions in the state comply with WCAG 2.1 Level AA. The state also has its own accessibility guidelines for government websites, suggesting but not requiring government sites to meet or exceed WCAG 2.
While WCAG has not been codified as the standard for web accessibility, the Department of Justice suggests that substantial compliance with WCAG 2.1 AA might be a safe harbor for avoiding the initiation of ADA title II litigation for state and local governments and educational institutions.
Additionally, the Department of Health and Human services issued regulations that apply to healthcare providers that accept Federal funds, which include reference to WCAG 2.1 AA.
In some instances, the use of WCAG violation has been a scam. Specifically, some individuals and businesses have reported receiving demand letters claiming ADA internet accessibility violations.
These letters have demanded significant payments for damages due to ADA compliance failures. In some instances, the demand letters conflate WCAG compliant failure with ADA violations, which have been found to be deceptive.
Increasingly, certain law firms are known to have filed numerous lawsuits against businesses based on accessibility violations. Normally, these lawsuits are filed by serial plaintiffs. These plaintiffs can file hundreds of simultaneous claims against all types of businesses on the pretense that they cannot fully and equally enjoy the services offered by the defendant’s website because of their inaccessibility.
Progressively, judges are disfavoring such duplicative lawsuits, particularly when the plaintiff cannot demonstrate a concrete injury.
Additionally, courts are now requiring plaintiffs to establish the elements of standing; (1) a concrete, particularized, and actual or imminent injury-in-fact, (2) that is traceable to defendant’s conduct, and; (3) likely to be redressed by a favorable decision. In short, courts are now requiring plaintiffs to show general and systematic barriers on defendant’s internet site which specifically prevented the plaintiff from accessing goods and services on the website.
Consider, for example, In Mendez v. Apple Inc., a New York Southern District Court case (1:18-cv-07550), a legally blind plaintiff, filed a class action lawsuit alleging that Apple’s website was not accessible to individuals with disabilities.
The court ruled against the plaintiff who couldn’t provide the date of attempted access to the physical store and the goods that she was unable to purchase due to website inaccessibility.
While making the internet accessible is an important goal, courts and regulators have yet to define clear legal boundaries for ADA website compliance outside government-funded entities.
For private businesses, understanding where accessibility guidelines end and statutory obligations begin is critical to managing legal risk.
Businesses should watch for evolving standards and avoid overreacting to claims that conflate guidelines like WCAG with mandatory ADA requirements.
Jonathan Bick is counsel at Brach Eichler in Roseland, and chairman of the firm’s patent, intellectual property, and information technology group. He is also an adjunct professor at Pace and Rutgers Law Schools.