The Americans with Disabilities Act Should Not Include Websites

The Lion Brand Yarn Company does not stand at the forefront of technology. Founded in 1878, it describes itself as the oldest producer of knitting yarn in the United States. But recently, its nearly three-decade-old website was subject to new and costly demands.

Tammy and Clarence Frost filed suit against Lion Brand, claiming that the company’s website was difficult for blind people such as themselves to navigate. A U.S. district court judge in Minnesota ruled in February that Lion Brand’s website was a “place of public accommodation” under the 1990 Americans with Disabilities Act (ADA), and thus Lion Brand would have to make its website “accessible” to the blind. How, exactly, the company was supposed to carry out this mandate remains unclear.

Lawsuits against websites based on the ADA—legislation passed before the modern Internet existed—are a fast-growing issue. Judges have come to differing conclusions about the merits of these cases, creating wild uncertainty for businesses. Either Congress or the courts must clarify the statute—and sooner rather than later.

Congress passed the ADA with the goal of allowing disabled people to participate in public life. Thus it required places of “public accommodation” to make themselves accessible to the disabled. The law clarified that public accommodations included places such as a “motion picture house” or “laundromat.” Under the law, attorneys could sue restaurants to add wheelchair ramps or demand that small hotels add new elevators.

Despite the ADA’s focus on brick-and-mortar stores, starting in the later 1990s the Department of Justice and several lawyers argued that websites could also be considered places of public accommodation—and thus they would have to find ways to allow the blind or, occasionally, the deaf, to use them. Lawyers attracted by the attorneys’ fees that the ADA offered began suing companies with websites based on vague standards of what constituted accessibility.

Several efforts have been made to rein in the lawsuits or clarify the ADA, any one of which would limit their damage. In 2010, the Obama Department of Justice floated the possibility of a federal rule making the Web Content Accessibility Guidelines (WCAG), created by the World Wide Web Consortium, the standard for what could be considered accessible online. These guidelines include making all content accessible by a keyboard, instead of a mouse, and providing text alternatives for images. At the time, the Justice Department admitted that the evolving nature of the Internet meant that it might be “difficult, if not impossible” to make clear rules about accessibility; it later dropped the proposal.

Nonetheless, the department continued to support lawsuits based on standards that it admitted it could not define. In 2018, Congressmen Lou Correa and Ted Budd—the latter now a senator—wrote to the DOJ arguing that the department’s continued legal campaign against websites was unjustifiable in the absence of clear standards. Correa and Budd contended that the suits were “unfair and violate basic due process principles” given a lack of statutory authority or “a final rule establishing website disability standards.”

Though the National Federation of the Blind blasted the representatives, Correa and Budd wanted only to clarify the basis of such suits, not end them. During the pandemic in 2020, the pair proposed the Online Accessibility Act, which would have added a new section to the ADA requiring that websites be accessible to the disabled. It used the same WCAG guidelines as the best means to define “accessible.” Nevertheless, the bill went nowhere.

Correa’s and Budd’s bill offered one important fix that many critics of ADA lawsuits wanted. Today, lawsuits against websites are common because lawyers can get a quick monetary settlement or attorneys’ fees if they find any issues. These lawyers often use “serial plaintiffs,” such as the Frosts, to attack dozens of different companies and get cash payments.

The goal of disability laws should be to fix problems, not garner attorneys’ fees. Thus, Correa and Budd’s bill gave businesses 90 days after receiving a legal notice to fix any alleged issue before they would be subject to suit. Such a time limit ensures plaintiffs would bring cases based only on concern with accessibility—not financial gain.

Similar proposals have been offered before. In 2016, a congressional bill giving businesses four months to fix any ADA issues after receiving a notice passed the House Judiciary Committee. In 2023, a California state senator proposed a “right to cure” bill, which also gave small businesses four months to fix any issues before facing the fines and attorney’s fees that were part of California’s own disability act. These proposals likewise went nowhere.

In the absence of legislative action, ADA suits against websites have become more than a mere nuisance. Over 4,000 accessibility lawsuits were filed against companies last year, more than 2,400 of those in federal courts. Almost half of federal lawsuits involved companies that had already faced a legal action. Responding to these suits can cost companies tens of thousands of dollars.

The easiest solution would be for courts to rule that the ADA as written does not include websites. So far, three circuit courts have taken this approach, holding that a reference to “public accommodations” in a law passed 35 years ago applies only to physical buildings. Two circuit courts, however, have claimed that the act could apply to non-physical settings; many state and district courts have ruled similarly. Eventually, the Supreme Court will need to step in.

Alternatively, Congress could restate what it intended in 1990—that it meant for the ADA to deal with issues of physical access, not to require that every new technology be subject to vague accessibility standards and expensive lawsuits.

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