Many businesses running websites know that their website must be compliant with the federal Americans With Disabilities Act (“ADA”). However, while federal courts have established some clear rules with respect to website compliance obligations, there are other areas that are legally murky.

Generally, the clear rules are that if your website drives traffic to physical locations, then your website must have specific coding that will translate the visual images into audio for the visually impaired. By contrast, if your business has no physical locations, then your website need not be ADA-compliant. This is because a website is not a physical location. Beyond that, things get less clear. Making matters worse, being sued for alleged website non-compliance can be very expensive. You will need a very experienced ADA website compliance law firm like Revision Legal. Call us at 231-714-0100. We are ADA compliance lawyers specializing in internet law.

Several recent federal cases have highlighted that lack of standing may be among the best legal defenses to website compliance litigation, particularly where a business is facing a “high frequency” plaintiff. In general, to have standing to sue under the ADA, a plaintiff must show that they

• Suffered an injury in fact
• The injury is fairly traceable to the challenged conduct of the defendant
• That a favorable judicial decision will remedy the injury
• That, either the plaintiff is deterred from returning to the facility or the plaintiff intends to return to the facility and is therefore likely to suffer repeated injury

This last requirement is specific to the ADA, and it is this last requirement that is effectively limiting ADA website compliance litigation. A good example comes from Gomez v. The Boulevard And Company, Inc., Case No. 2:21-cv-2057 WBS DB (US Dist. E.D. Cal., Sept. 6, 2022). In that case, the plaintiff — Andres Gomez — sued, claiming that the defendant’s website was not ADA-compliant. The defendant operates a cannabis collective dispensary in California. Thus, at least at the pleading stage, the ADA would apply to the company’s website. The defendant did not answer or otherwise appear in the case, and Gomez sought a default judgment. However, the court raised questions of legal standing. Gomez stated that he visited the website, but it was not ADA-compliant. With respect to plans to visit the physical location, Gomez offered that he was in the California area and was considering visiting Northern California because he had family living in Northern California.

However, this was insufficient for the court. According to the court, Gomez’s Civil Cover Sheet stated that Gomez lived in Miami, Florida. The court found the assertions that Gomez was going to visit the dispensary to be vague and insufficient. The court denied the motion for default judgment (with leave to refile).

Another case helpful to defending website compliance litigation is another case involving Andres Gomez. See Gomez v. Trinitas Cellars, LLC., Case No. 3:21-cv-09006 (US Dist. Court, N.D. California, June 17, 2022). In that case, the judge dismissed the ADA complaint on summary judgment. One important holding was that even where a website must be ADA-compliant, not every element of the website must be compliant. In particular, Gomez claimed that there were no text-to-audio translations for various logos, the main menu, and various icons. The court said that there was no injury to Gomez for these alleged ADA-compliance failures.

Contact Revision Legal

For more information or if you have been searching for an “ADA compliance attorney near me,” call Revision Legal at 231-714-0100. We are ADA compliance attorneys with proven experience in ADA compliance litigation.

WCAG 2.1 and the Legal Standard for Website Accessibility

Although no federal statute explicitly mandates a specific technical standard for website accessibility, courts and the Department of Justice have consistently pointed to the Web Content Accessibility Guidelines (WCAG) as the benchmark. WCAG 2.1, published by the World Wide Web Consortium (W3C), establishes three conformance levels: A, AA, and AAA. Courts evaluating ADA website compliance claims typically ask whether a website meets Level AA, which requires that content be perceivable, operable, understandable, and robust for users of assistive technologies such as screen readers and alternative input devices.

In practice, a failure to achieve WCAG 2.1 Level AA compliance does not automatically establish ADA liability. As noted above, the plaintiff must also satisfy Article III standing requirements. Where those standing requirements are not met, even a technically non-compliant website may survive litigation. That said, proactive compliance remains the safest course because the DOJ has made clear through technical assistance guidance that Title III of the ADA applies to websites that have a sufficient nexus to a physical place of public accommodation.

The DOJ’s Final Rule and What It Means for Businesses

In March 2024, the Department of Justice finalized a rule under Title II of the ADA requiring state and local government websites to conform to WCAG 2.1 Level AA by specific compliance deadlines. While Title II governs public entities rather than private businesses, the rule signals the direction of federal enforcement policy. Private businesses covered by Title III should treat this rulemaking as a strong indicator that DOJ will eventually pursue similar formal standards for commercial websites.

The rule also provides a safe harbor for content that conforms to earlier WCAG versions, but that safe harbor is narrow. Businesses that have done nothing to address accessibility will not benefit from it. Businesses that have actively sought conformance with WCAG 2.0 Level AA are in a better legal position than those that have ignored the issue entirely, though upgrading to WCAG 2.1 Level AA is now the practical standard courts and enforcement agencies look to.

High-Frequency Plaintiffs and Serial ADA Litigation

A significant driver of ADA website accessibility litigation is the phenomenon of the “high-frequency” or serial plaintiff — an individual who files dozens or even hundreds of ADA lawsuits against different businesses within a short period. Federal courts have grown increasingly skeptical of such plaintiffs, particularly in the website accessibility context. The standing analysis discussed above — specifically whether the plaintiff has a genuine intent to return to or use the website — is the primary mechanism courts use to weed out manufactured claims.

In Laufer v. Looper, 22 F.4th 871 (10th Cir. 2022), the Tenth Circuit found that a self-described “ADA tester” who visited hotel reservation websites with no genuine intent to book a room lacked Article III standing to sue. Courts in the Ninth Circuit and elsewhere have reached similar conclusions. Even where plaintiffs survive the standing challenge, the damages available under the ADA are limited: Title III does not allow monetary damages — only injunctive relief and attorney’s fees. This makes serial litigation economically driven primarily by fee awards, which courts increasingly police through careful review of standing at the pleading stage.

Practical Steps for Achieving and Documenting Compliance

Even with favorable standing defenses available, the better approach is proactive compliance. Businesses should take the following steps:

• Commission an independent WCAG 2.1 Level AA audit using both automated scanning tools and manual testing with actual assistive technology users
• Publish an accessibility statement on the website identifying the compliance standard you target, the date of your most recent audit, and a contact mechanism for users who encounter barriers
• Maintain contemporaneous documentation of remediation efforts, which can defeat claims of willful non-compliance and support a good-faith defense
• Include an accessibility addendum in vendor and development contracts so that third-party widgets and code do not introduce non-compliant elements
• Establish a periodic review schedule — at minimum annually — because websites change frequently and a compliant site can become non-compliant after a routine content update

Documentation of these efforts matters enormously in litigation. A plaintiff who files suit against a business that has made documented, good-faith remediation efforts faces a much harder path to obtaining injunctive relief or attorney’s fees than one suing a business that has done nothing. Courts have discretion in awarding fees, and that discretion is frequently exercised against plaintiffs who target defendants who were already working in good faith toward compliance.

Contact Revision Legal for ADA Website Compliance Counsel

ADA website compliance is a moving legal target — technical standards evolve, court decisions refine the standing analysis, and DOJ enforcement posture shifts. Businesses need experienced internet law counsel who monitor these developments and can translate them into practical compliance strategies. If your business has received an ADA demand letter, has been named in a complaint, or simply wants to get ahead of potential exposure, contact Revision Legal at 231-714-0100 or visit our contact page. You can also learn more about our ADA website compliance services. We handle ADA website accessibility matters for businesses across the country.