Digital Accessibility Crystal Ball: Will We See Different Types of Cases in 2019 and Beyond?

With digital accessibility lawsuits at record numbers—more than 2,250 cases were filed in federal court under Title III of the Americans with Disabilities Act in 2018, nearly triple the number from the year prior—it can be hard to keep track of what’s happened, let alone plan for what’s happening next. 

So, Level Access asked some of the legal sages at the forefront of digital accessibility to peer into their crystal balls and tell us what types of cases we’ll see in 2019… and beyond. 

There Will Be an Increased Focus on Mobile Apps and Other Digital Platforms

Several of our Crystal ball participants emphasized that litigation against mobile apps and non-website digital platforms was likely to increase significantly. 

“Interestingly, I think we might see more of a focus on mobile apps as targets of litigation,” said Olabisi Okubadejo, Of Counsel at Ballard Spahr LLP. “With all the plaintiff’s firms simultaneously suing everybody that they can and as many jurisdictions as they can, at some point they’ll start to tap out and so I think they’ll have to branch out a little bit, and mobile apps are more of the things we’ll see them focus on.”

According to Robert Duston, a partner at Saul Ewing Arnstein & Lehr LLP, the trend toward mobile apps has already begun. 

“I’ve seen increased attention on mobile apps and related digital platforms, and I think that’s going to continue to expand. I’m see wording of things [in complaints and demand letters] that is different, trying to get a broader scope of platforms that they’re looking at.”

Employment Claims Under ADA Title I Will Increase

While historically the bulk of digital accessibility claims have been brought by consumers under ADA Title III, the several of the panelists agreed that we are likely to see a rise in claims under Title I, which prohibits discrimination against individuals with disabilities in the employment sphere. 

Shanti Atkins, founder of NAVEX Global, connected the anticipated rise in Title I litigation to the increasing digitalization of many jobs. 

“The world is so digital, even in a job that classically 5, 10 years ago had no digital component, now with mobile and IoT (Internet of Things), you could be in a job that once…. was very not connected online, now very much has an online component,” Atkins said. “Imagine being a worker in an environment where a fundamental piece of how you’re supposed to get your job done, maybe how you’re evaluated, how you interact with customers, is not accessible to you. That doesn’t feel safe, fair, or welcoming.” 

But, Okubadejo noted that Title I lawsuits will be more difficult to bring, especially on a class action basis. 

According to Okubadejo, “Employment claims typically are handled on an individualized basis so you’re looking at the individual employee what they’re specific disability is. You’re engaged in an interactive process with them. You can offer them alternatives and it’s such a process unique to the individual that it seems like a claim that would be hard to make on a cost wide basis and you also wonder how many impacted employees there actually are. So how many people on whose behalf are you filing this? It seems like a more difficult legal argument because the individual plaintiffs are likely to be so different in terms of their disabilities and their needs and how they could be accommodated and whether they were accommodated and what they were offered. 

Litigation Against Consumer Products Manufacturers Will Rise

In 2018, digital accessibility suits largely focused on consumer-focused industries, including retailers, hotels, financial institutions, and restaurants. But, many consumer products manufacturers also found themselves on the receiving end of lawsuits and demand letters, especially those that operate their own retail or online stores. With litigation against retail outlets approaching saturation, one panelist suggested we’re going to see many more complaints against consumer products manufacturers in the future. 

“In the past year, I’ve seen it hit the websites of companies that are consumer products manufacturers. They have a large retail presence and a brand presence, and their products are sold sometimes through their own flagship stores, but also the products show up in lots of different retail contexts, including through their own website,” said Donald Brown, partner at Manatt, Phelps & Phillips, LLP. 

There Could Be Another Wave of Litigation Against Colleges and Universities

Finally, one panelist noted that we are likely to see another wave of litigation and complaints with the Department of Education against higher education institutions, with a potential for more complaints brought by students. 

According to Okubadejo, “It seems like every once in a while, there’s this wave against colleges and universities, which have vulnerability under Title III and under Section 504 [of the Rehabilitation Act].”  

“I think we’ll probably continue to see colleges and universities targeted on some level. Colleges and universities, in addition to having potential obligations to the public, also have very specific requirements for students, and the plaintiffs that we’ve seen so far have mainly been generic serial plaintiffs as opposed to actual students attending the institutions who have suffered some kind of alleged harm. While we may see more of these mass filers targeted at colleges and universities, I think they don’t always have the same impact as an actual student filing the complaint,” said Okubadejo. 

Want to Know What Else They Saw in Their Crystal Balls?

While our Crystal Ball panelists had a lot to say on what types of lawsuits they expected to see in 2019 and beyond, this wasn’t the only question Level Access asked them. Our legal sages provided us their takes on a broad variety of other issues, including: 

  • How major decisions like Robles v. Dominos Pizza LLC and the pending decision in Gil v. Winn Dixie Stores, Inc. will affect the legal environment 
  • Why class actions have become so popular and how that trend will impact organizations 
  • What legal arguments are likely to pop up in court next 
  • Whether the Department of Justice (DOJ)’s September 2018 letter reiterating that the ADA applies to websites will have any impact on litigation 
  • If the newly-elected Congress is likely to address digital accessibility in the absence of DOJ action 
  • Whether state laws designed to limit ADA suits will have their desired effect 

Want to hear what they said?  

Check out Level Access’s free Digital Accessibility Crystal Ball 2019 whitepaper to find out what our panelists said on these and other topics!