Digital Accessibility Under Title III of the ADA: Recent Developments and Risk Mitigation Best Practices

Companies of all sizes, and especially e-commerce companies, have been hit by waves of demand letters and lawsuits over the past decade alleging that websites and (increasingly) mobile applications are inaccessible to individuals with disabilities. Most of these cases tend to result in early settlements and few go to trial because businesses tend to have limited affirmative defenses and the cost of litigating typically far outweighs the cost of settlement.

While digital accessibility litigation continues to proliferate, the U.S. Department of Justice (“DOJ”) has not yet promulgated a clear technical accessibility standard through regulations or regulatory guidance under Title III of the Americans with Disabilities Act (“ADA”), which applies to public accommodations (i.e., businesses that offer goods and services to the public). As a result, many businesses seek to comply with the Web Content Accessibility Guidelines (“WCAG”), which are an international standard that has been referenced in some of the DOJ’s consent decrees, as well as court orders. While companies could apply any technical accessibility standard that meets the “effective communication” requirement of Title III of the ADA, they have expressed a desire for certainty in knowing that the standard they use will meet the DOJ’s expectations, should they need to defend it in litigation. Certainty concerning a technical accessibility standard can only be achieved through the DOJ amending its Title III regulations or issuing regulatory guidance.

This article explains the current regulatory environment, the state of digital accessibility litigation, and potential legislative solutions to the challenges they pose, as well as steps that businesses can take to mitigate the risk of lawsuits.

Background

The ADA, which was enacted in 1990, was the first comprehensive federal civil rights law protecting the rights of individuals with disabilities. The ADA consists of several titles, and the law is enforced by the DOJ and private plaintiffs.^[1] Title III applies to “public accommodations,”^[2] which generally means businesses that offer products and services to the public. While twelve categories of businesses are specified under both the law and the DOJ’s regulations implementing Title III of the ADA,^[3] the term public accommodation is broadly construed.

Title III prohibits public accommodations from discriminating against individuals with disabilities in offering goods and services. Title III also requires public accommodations to ensure effective communications with individuals with disabilities, including providing auxiliary aids and services to them, if needed, in an accessible format and in a timely manner. Accessible electronic and information technologies, such as websites and mobile applications, are examples of auxiliary aids.

The DOJ and Judicial Enforcement of Title III

At the time the ADA was enacted, websites did not widely exist. However, in 1996, the DOJ issued an advisory opinion stating that public accommodations must make their websites accessible to individuals with disabilities in order to provide effective communication in compliance with Title III of the ADA.^[4] The DOJ then actively pursued enforcement of Title III against public accommodations, alleging inaccessible websites through litigation resulting in consent orders, and the agency also filed amicus briefs and statements of interest in other cases.

Subsequently, many federal and state courts have interpreted Title III of the ADA, as well as corollary state laws like California’s Unruh Civil Rights Act and New York’s Human Rights Law, to apply to websites. Although there are inconsistencies among judicial decisions concerning whether websites qualify as public accommodations under the ADA and applicable state laws, more federal and state courts than not have sided with plaintiffs in requiring businesses to make their websites accessible. Therefore, as a general matter, companies must make their websites—just like physical spaces—accessible to individuals with disabilities under Title III of the ADA.

Lack of a Uniform Technical Accessibility Standard

However, the DOJ has never established a uniform technical accessibility standard through either regulations or guidance for companies to follow to ensure that websites and other digital assets are accessible to individuals with disabilities, despite efforts by the agency to do so through two advance notices of proposed rulemaking issued during the 2010–2016 era. Nonetheless, the DOJ has undertaken enforcement actions against companies for inaccessible websites under the theory that the company failed to comply with the “effective communication” requirement of Title III of the ADA. In addition, over the past eight to ten years, private litigation alleging that business digital assets are inaccessible has proliferated. Plaintiffs’ attorneys frequently allege violations of both the ADA and corollary state laws, which often permit damages—unlike the ADA, which only permits injunctive relief.

As previously noted, in addition to the DOJ citing the WCAG, an international, voluntary technical standard, in some of its consent orders,^[5] court orders and settlements have cited the WCAG standard.^[6] As a result, companies have increasingly relied on the WCAG standard to make digital assets accessible. The current WCAG standard is 2.2, and that standard continues to evolve every few years, with WCAG 3.0 on the horizon.^[7] Most companies seek to comply with the intermediate conformance criteria AA, known as Level AA, although some companies are still complying with the prior version, WCAG 2.1 AA.

DOJ ADA Guidance and Enforcement Under Different Administrations

The DOJ has sought to enforce website accessibility under Title III of the ADA during Democratic administrations, and the agency was fairly active during the Biden era. Specifically, in 2022, the DOJ issued guidance on making websites accessible.^[8] However, the guidance did not contain any technical standard for accessibility, and it did not break any new ground in providing useful guidance for companies. Then, in 2024, the DOJ issued final regulations containing accessibility requirements for websites and mobile applications of state and local governments under Title II of the ADA, which cite WCAG 2.1 AA as the required technical standard.^[9] While experts expected that the DOJ likely would use the Title II rulemaking as a model for amending the agency’s Title III regulations to similarly specify WCAG 2.1 AA as the required technical accessibility standard for public accommodations, the Biden administration ran out of time to pursue that initiative.

In the current political environment, we do not expect the DOJ to amend its Title III regulations during the next four years. Furthermore, we do not expect much enforcement activity from the DOJ under Title III since enforcement of civil rights laws, such as the ADA, has been deprioritized by the current administration. Unfortunately, the lack of enforcement by the DOJ 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 the ability of people with disabilities to use them, according to a 2025 report by WebAIM.^[10] These barriers have spawned a flood of litigation under Title III of the ADA since 2016, with nearly 2,500 federal lawsuits being filed across the United States in 2024, according to law firm Seyfarth Shaw.^[11] Based on the pace of filings this year, 2025 appears likely to top that number by nearly 20 percent, with 2,019 lawsuits already filed during the first half of 2025, according to UsableNet.^[12] Most cases are filed in New York and Florida, where plaintiffs can receive damages. California, where damages are also available, saw fewer federal lawsuits in 2024. But federal lawsuits were also filed in Illinois, Minnesota, and Pennsylvania. Plaintiffs also are filing more frequently in state courts, rather than federal courts, because state laws often permit damages, unlike the ADA, which only permits injunctive relief. In addition to websites, more cases are challenging the inaccessibility of mobile applications.

The main legal issue arising in litigation is whether online-only businesses without a physical “place of public accommodation” (i.e., a brick-and-mortar location) are covered by Title III of the ADA. Only the U.S. Court of Appeals for the Ninth Circuit has directly addressed the issue, finding that businesses’ websites are covered if they have a “nexus” with a physical place. But other circuits have foreshadowed their approaches, with the U.S. Court of Appeals for the First, Second, and Seventh Circuits indicating that Title III may cover the websites of online-only businesses, and the U.S. Court of Appeals for the Third and Sixth Circuits indicating that Title III only covers the websites of businesses with a nexus to a physical place.

There has been some question about which technical accessibility standard meets the “effective communication” obligation under Title III of the ADA. Courts, the DOJ, and other federal agencies have variously applied the WCAG 2.0 or 2.1 AA standard. As previously noted, in 2024, the DOJ released new regulations under Title II of the ADA, which require state and local governments to ensure that their websites comply with WCAG 2.1 AA. Courts in Title III cases may 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 styled as class actions, including nationwide class actions, which may be subject to the U.S. Supreme Court’s recent decision in Trump v. CASA casting doubt on the ability of lower courts to issue nationwide injunctions.^[13] The vast majority of cases result in settlements, often with the company agreeing to make its website and mobile application accessible within a certain period of time and paying the plaintiff’s attorney fees and damages.

Because businesses with inaccessible websites have few defenses and paying a relatively small amount to a plaintiff is much less costly than paying to defend the lawsuit (and potentially the plaintiff’s lawyers if the business loses), very few cases go to trial. The one defense that has been successful in a few cases is the assertion that the plaintiff does not have standing to challenge the inaccessibility of the website because they are ineligible to access the business, cannot demonstrate that the alleged barriers actually interfered with their use of the site, or cannot show that they intend to visit the website in the future.

Potential Federal Legislative Solutions

Over the past eight years, members of Congress have introduced multiple bills to address how businesses can fix accessibility barriers under Title III of the ADA without immediately being sued.

Notice and Opportunity to Cure Legislation

Several of the bills have created procedural steps for plaintiffs, such as providing notice to a business of the alleged accessibility issues and allowing time for the business to remediate those deficiencies before litigation can proceed, as a means of providing a “safe harbor” for businesses from litigation. This “notice and opportunity to cure” legislative model has been framed by bill sponsors and advocates as a potential way to encourage efficient and timely resolution by businesses of accessibility barriers while minimizing lawsuits. On the other hand, disability rights organizations have raised concerns that delaying enforcement could result in prolonged barriers for people with disabilities. However, bills containing the “notice and opportunity to cure” approach have not gained sufficient bipartisan support to proceed to a floor vote in previous sessions of Congress.

The Latest Federal Legislation: A National Digital Accessibility Standard

On May 14, 2025, Representative Pete Sessions (R-TX) introduced H.R. 3417, the Websites and Software Applications Accessibility Act of 2025, bipartisan legislation that seeks to establish uniform federal accessibility standards for websites and software applications.^[14] Supported by the National Federation of the Blind and other disability rights advocacy organizations, this bill aims to clarify digital accessibility standards for a wide range of entities, including employers, public accommodations, and commercial providers. Key features of the bill include:

• affirming that digital spaces, whether or not tied to physical locations, are covered under Title III of the ADA;
• directing the DOJ and the Equal Employment Opportunity Commission to develop specific, enforceable accessibility standards for websites and mobile applications (each federal agency must issue proposed rules within twelve months and final rules in twenty-four months; those federal agencies must then update the rules every three years to reflect evolving technology); and
• creating a framework for supporting small businesses through technical assistance and grant opportunities.

The primary emphasis of H.R. 3417 is on setting clear, enforceable standards to improve digital access for individuals with disabilities. The bill does not include provisions for a “notice and opportunity to cure” process or similar business-focused litigation protections, but instead permits individuals with disabilities to continue to file lawsuits against companies with inaccessible digital assets. While the introduction of H.R. 3417, if enacted, would mark a significant step toward national digital accessibility standards, the rulemaking process takes time, and it does not contain a safe harbor from litigation for businesses in the interim.

The Path Forward

Digital accessibility is widely recognized as a civil rights issue, and the evolving legislative landscape reflects ongoing efforts to balance accessibility, provide clarity concerning technical accessibility requirements, and ensure compliance with Title III of the ADA.

Regardless of the outcome for H.R. 3417 or other federal legislation, prioritizing inclusive digital design and following recognized standards such as WCAG remain best practices for businesses seeking to provide equitable digital experiences and reduce legal risk.

Best Practices for Digital Accessibility Risk Management

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

• Ensure that digital assets are accessible through inclusive design and remediation. Businesses should build new websites or mobile applications by integrating appropriate programming code into the site/application that conforms with WCAG 2.2 AA to ensure accessibility. For existing websites and mobile applications, businesses should ensure that such digital assets are fully accessible to individuals with disabilities by hiring a qualified website accessibility consulting company to conduct an assessment. Reputable accessibility consultants use a three-prong approach consisting of an automated scan, review of programming code, and user testing by individuals with disabilities. If accessibility deficiencies are found, then they should be remediated to conform to the WCAG 2.2 AA standard. After digital assets are remediated, a monitoring routine should be implemented to ensure that accessibility is maintained—typically through the purchase of monitoring software.
• Develop an ADA risk management program. A comprehensive ADA risk management program is necessary for effectively managing Title III compliance risks and can serve as an affirmative defense if a company is sued. Key elements of an ADA risk management program to consider implementing include the following:
  • Post an accessibility statement on digital assets underscoring the business’s commitment to accessibility and providing appropriate contact information (e.g., 800 number and email address) where individuals with disabilities can seek assistance with technical barriers.
  • Develop and implement a digital assets compliance policy.
  • Appoint an accessibility coordinator to oversee digital asset accessibility compliance efforts across the business.
  • Establish a cross-functional committee, led by the accessibility coordinator, to coordinate accessibility efforts across the business. Accessibility committee members should include legal, compliance, marketing, product, and technology staff, at a minimum.
  • Ensure that employees receive appropriate training:
    • Provide technical training to developer staff to ensure that they understand how to properly code to ensure accessibility and remediate accessibility issues when identified.
    • Provide substantive compliance training on Title III of the ADA to legal and compliance, marketing, product, and technology staff.
    • Train customer service agents to identify key terms and promptly respond to individuals with disabilities’ requests for technical assistance when encountering barriers on websites or mobile applications.
  • Develop and implement procedures to ensure consistency in customer service processes for individuals with disabilities and provide warm handoffs to technical staff who can assist with any digital barriers that such individuals may encounter.

As a side note, we do not recommend using a widget or overlay to achieve compliance with Title III of the ADA. Widgets and overlays have become popular in recent years as a “quick fix” because they create an alternative, seemingly accessible version of a website and are relatively inexpensive. In our view, these tools do not comply with the letter or spirit of Title III of the ADA because they create a “separate but equal” experience for individuals with disabilities. Moreover, these tools do not correct code-level accessibility deficiencies and often create barriers with screen readers used by the blind. As a result, approximately 25 percent of lawsuits in 2024 were brought against companies that used widgets and overlays.^[15] Therefore, these types of tools often fall short of delivering true digital accessibility.^[16] Simply put, there is no “silver bullet” to avoid doing the hard work of evaluating the accessibility of websites and mobile applications, remediating any deficiencies, and then maintaining accessible digital assets to achieve compliance with Title III of the ADA and corollary state laws.

Doing the Right Thing—Legally and for Business Growth

While it is important for companies that offer goods and services to the public to comply with accessibility requirements under Title III of the ADA and reduce legal risk, it is even more important for businesses to do the right thing for individuals with disabilities by making digital assets fully accessible to them. Plus, it makes good business sense. According to the U.S. Centers for Disease Control and Prevention, 28.7 percent of adults, or more than one in four, in the United States have some type of disability.^[17] That translates to approximately 70 million adults who have disabilities. Therefore, when digital assets are inaccessible, over one-quarter of U.S. consumers, who could be potential customers, are excluded from access to a business’s goods and services.

This article is related to a CLE program that took place during the ABA Business Law Section’s 2025 Spring Meeting. To learn more about this topic, listen to a recording of the program, free for members.

1. 42 U.S.C. § 12101 et seq. Other titles of the ADA include Title I, which prohibits discrimination in employment and is enforced by the Equal Employment Opportunity Commission. Title II applies to state and local government entities, and it protects qualified individuals with disabilities from discrimination on the basis of disability in services, programs, and activities provided by state and local governments. ↑

2. 42 U.S.C. § 12181 et seq. ↑

3. Id. § 12181(7); 28 C.F.R. § 36.104. ↑

4. Letter from Deval Patrick, Assistant Att’y Gen., C.R. Div., U.S. Dep’t of Just., to Tom Harkin, U.S. Sen. (Sept. 9, 1996). ↑

5. See, e.g., Settlement Agreement Between the United States of Am. & Ahold U.S.A., Inc. & Peapod, LLC (Nov. 17, 2014) (citing need for online grocery store’s website and mobile application to conform to WCAG 2.0 AA); Settlement Agreement Under the Americans with Disabilities Act Between the United States of Am. & CVS Pharmacy, Inc. (Apr. 11, 2022) (citing need for pharmacy’s COVID-19 vaccine registration portal to conform to WCAG 2.1 AA). ↑

6. Payan v. L.A. Cmty. Coll. Dist., No. 2:17-cv-01697-SVW-SK (C.D. Cal. Feb. 29, 2024), ECF No. 613 (order regarding final injunction) (citing WCAG 2.1 Level AA); Andrews v. Blick Art Materials, LLC, 286 F. Supp. 3d 365 (E.D.N.Y. 2017) (citing WCAG 2.0 Level AA); Gil v. Winn-Dixie Stores, Inc., 257 F. Supp. 3d 1340 (S.D. Fla. 2017) (citing WCAG 2.0) (vacated on other grounds). ↑

7. The first public working draft of WCAG 3.0 was released on January 21, 2021. According to the Worldwide Web Consortium (“W3C”), which promulgates the WCAG standards, WCAG 3.0 remains in working draft form, and a release date has not yet been set. Therefore, W3C’s issuance of WCAG 3.0 is likely still several years away. ↑

8. U.S. Dep’t of Justice, Guidance on Web Accessibility and the ADA, ADA.gov (Mar. 18, 2022). ↑

9. Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of State and Local Government Entities, 89 Fed. Reg. 31,320 (June 24, 2024) (U.S. Dep’t of Just. Final Rule). ↑

10. WebAIM, The WebAIM Million report (2025). ↑

11. Kristina M. Launey & Minh N. Vu, Lawsuit Filings Continue to Decrease in 2024, Seyfarth Shaw (Apr. 22, 2025). ↑

12. Jason Taylor, Usablenet, 2025 Midyear Digital Accessibility Lawsuit Report (July 9, 2025). The report covers all cases filed across the eleven federal circuit courts under Title III of the ADA, as well as cases filed in key state courts, including California, Florida, and New York. ↑

13. Trump v. CASA, 606 U.S. ___ (2025). ↑

14. H.R. 3417 is cosponsored by Representatives Steny Hoyer (D-MD), Darren Soto (D-FL), Randy Weber Sr. (R-TX), Shri Thanedar (D-MI), and Greg Landsman (D-OH). ↑

15. Jason Taylor, UsableNet, 2024 Year-End Digital Accessibility Lawsuit Report (Jan. 3, 2025). ↑

16. For a more detailed explanation of how widgets and overlays work and their shortcomings, see Melissa Morse, Accessibility Overlays: What They Are and Why They Fall Short, TPGi (updated Aug. 27, 2024) (blog post). ↑

17. Disability Impacts All of Us Infographic, U.S. Ctrs. for Disease Control & Prevention (Apr. 14, 2025). ↑