Chris Willis and Lori Sommerfield discuss the latest regulatory, legislative, and litigation developments under the Americans with Disabilities Act (ADA), as accessibility of digital platforms and mobile applications increasingly become crucial for consumer finance providers.
In this episode of The Consumer Finance Podcast, Chris Willis and Lori Sommerfield discuss the latest regulatory, legislative, and litigation developments under the Americans with Disabilities Act (ADA), as accessibility of digital platforms and mobile applications increasingly become crucial for consumer finance providers. This episode covers the DOJ's guidance on website accessibility, evolving Web Content Accessibility Guidelines, potential legislative solutions, and the risks of private litigation amid a surge in lawsuits alleging violations of the ADA. With a focus on litigation trends and risk mitigation strategies, this discussion is vital for businesses striving to ensure compliance and protect their digital assets in a complex legal environment. Gain practical insights on assessing and improving website accessibility and learn how to establish a robust ADA risk management program to shield your business from potential legal challenges.
The Consumer Finance Podcast – Current Regulatory, Legislative, and Litigation Developments on ADA Website Accessibility for Consumer Finance Digital Platforms
Host: Chris Willis
Guests: Lori Sommerfield
Date Aired: June 26, 2025
Chris Willis:
Welcome to The Consumer Finance Podcast. I'm Chris Willis, the co-leader of Troutman Pepper Locke’s Consumer Financial Services Regulatory Practice. And today, we're going to be giving an update on regulatory and litigation issues relating to the Americans with Disabilities Act and particularly, website accessibility.
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Now, as I said, today we're going to be doing an update on the Americans with Disabilities Act, and in particular on website accessibility under the ADA. Joining me to talk about that is my partner, Lori Sommerfield, who has a very active practice in this area. Lori, thanks again for being on the podcast. You're a frequent visitor, and I'm really glad for it.
Lori Sommerfield:
My pleasure, Chris. It's great to be with you, as always.
Chris Willis:
Thanks for being with me today to provide an update on ADA website accessibility in terms of regulatory developments and litigation risk, as well as potential federal legislation designed to protect businesses from the increasing number of website accessibility lawsuits that we see filed each year by either individual plaintiffs, or by advocacy groups, like the National Federation of the Blind. The U.S. Department of Justice is the agency that's responsible for administering the ADA, and we're going to be talking about developments under Title III, which governs public accommodations, which websites have been addressed under that rubric.
Basically, the public accommodation language means any business that offers goods or services to the public, and 12 categories of businesses are specified under both the law and the DOJ regulations. But the scope of businesses subject to Title III is very broadly construed. Depending on judicial interpretations, Title III can apply to a business with both a brick-and-mortar presence and a website, or a business that's online only. Lori, let me, with that introduction, jump into what's going on in terms of an update.
The ADA was enacted in 1990 before websites even existed, before there was really an Internet from a consumer standpoint, but can you give the audience a brief overview of the requirements of Title III of the ADA and why it has been interpreted by both the DOJ and the courts to require that websites be accessible, even if they weren't contemplated when the legislation was passed in 1990?
Lori Sommerfield:
Title III prohibits businesses from discriminating against individuals with disabilities in offering goods or services to the public, as you mentioned in your introduction. Title III also requires public accommodations to ensure effective communications, and that includes providing what is called “auxiliary aids and services,” if they're needed, in an accessible format and in a timely manner. Accessible electronic and information technology are examples of auxiliary aids. That's the first nexus in terms of talking about websites.
As you pointed out, at the time that the ADA was enacted in 1990, websites didn't exist. But in 1996, DOJ issued an advisory opinion stating that websites must be made accessible to individuals with disabilities. That was actually motivated by an inquiry from Congressman Tom Harkin on behalf of a constituent, and Attorney General Deval Patrick responded to him at that time. You can still find that advisory opinion out there on the Internet, but it's ancient history at this point, because that was about 30 years ago.
Since then, many federal and state courts have subsequently interpreted Title III of the ADA, as well as corollary state laws, like the Unruh Act in California, or the New York State Human Rights Act, to apply to websites. As a general matter, companies have to make their websites accessible to individuals with disabilities, just like physical spaces under Title III of the ADA.
Chris Willis:
Thanks a lot, Lori. You mentioned DOJ. Why don't we talk for a minute about what the DOJ has done, or maybe hasn't done, in recent years to provide guidance to businesses about how to make websites accessible to individuals with disabilities, or create a technical standard for accessibility under Title III of the ADA? Do you mind addressing that?
Lori Sommerfield:
First, let me point out that DOJ typically has sought to enforce website accessibility under Title III of the ADA during Democratic administrations. DOJ was fairly active during the Biden era. Specifically, in 2022, DOJ issued guidance on making websites accessible, although that guidance, truthfully, did not really break any new ground. It didn't contain any recommended technical accessibility standard. Then in 2024, DOJ issued amended regulations that did contain accessibility requirements for websites and mobile apps of state and local governments. That was under Title II of the ADA.
Now, everyone at the time thought that the Title II regulations would serve as a model and lead to amendments to Title III regulations, especially in terms of specifying a technical standard. But there was insufficient time for DOJ to accomplish that before President Biden's term ended. At this point, I don't believe there's going to be any further rulemaking activity under the current administration. I just think it's extremely unlikely.
Since DOJ hasn't issued a uniform technical accessibility standard, either through regulatory guidance, or by regulation, companies have increasingly relied on the World Wide Web Consortium’s Web Content Accessibility Guidelines. Those are known as WCAG, or more commonly, the WCAG standards. Those are an international voluntary standard. The current version is WCAG 2.2, although there's a prior version out there of WCAG 2.1. Most companies seek to comply with the conformance criteria known as AA. There's three different levels of conformance criteria, A, AA, AAA. A is very easy to achieve conformance with. AA is the intermediate standard. Then AAA is very difficult to obtain conformance with. I call AA the “Goldilocks” standard. That's what most companies seek to comply with.
Chris Willis:
If the DOJ hasn't taken steps to promulgate a technical standard for accessibility under Title III and hasn't given effective guidance to businesses on which existing standard to use, is Congress riding to the rescue? Has Congress attempted to introduce legislation to solve the problem, or create a safe harbor from litigation for business?
Lori Sommerfield:
Well, Congress has attempted to. Since 2016, certain members of Congress have periodically introduced legislation that would require plaintiffs to provide advance notice of intent to sue companies for inaccessible websites, and then allow that company a reasonable period of time to try to remedy the accessibility deficiency. This is known as notice and cure legislation. Unfortunately, none of these bills have gone very far in the legislative process. In fact, most of them didn't even make it out of committee.
Chris Willis:
Was there any possibility that with a Republican Congress and a Republican president, legislation to provide businesses with some relief from ADA Title III lawsuits might gain traction over the next four years? I mean, do you think that this is a priority for the Republicans?
Lori Sommerfield:
Unfortunately, no, I don't. I don't see that legislation gaining any traction when Republicans have much bigger fish to fry under President Trump's second term, like big budget bills.
Chris Willis:
All right. So, we as the industry are drifting off on our own, and I think it's fair to say that private litigation seems like it's a much bigger risk for businesses than DOJ enforcement actions under the current environment. My understanding is that demand letters and lawsuits alleging accessibility violations of the ADA and similar state laws have greatly increased over the past 10 years, because of the lack of a technical accessibility standard. Can you tell us what type of trends you've seen recently in ADA Title III litigation?
Lori Sommerfield:
Sure, Chris. Litigation is absolutely a greater risk compared to DOJ enforcement actions. We're just not going to see any of that [enforcement] activity over the next three years. As you just mentioned, litigation has steadily increased over the last 10 years. Because of DOJ's lack of specifying a uniform technical accessibility standard and the fact that there's no legislative solution on the horizon that would provide a safe harbor from litigation for businesses, there's been basically a small cottage industry of plaintiff firms that have sprung up, especially since 2020, to try to go after this low-hanging fruit by filing just tons and tons of lawsuits against companies of all sizes.
Litigation is only going to increase in terms of alleging inaccessible websites. Let me cite to some statistics from a company called UsableNet, which is a website accessibility consulting company. They publish statistics on an annual basis and a mid-year basis. Based on their 2024 statistics, over 4,000 lawsuits were filed against owners of consumer-facing websites or mobile apps in both federal and state courts. While federal court filings experienced a slight decline from last year, lawsuits being filed in New York and California have continued to grow, and that reflects a shift toward state-specific venues.
You asked me about trends, so let me just focus on four key trends that we're seeing, other than the general increase in litigation alleging inaccessible websites. First of all, most cases are brought in three jurisdictions, New York, California, and Illinois, because their laws allow damages, unlike Title III of ADA, which only permits injunctive relief. According to that UsableNet report, 75% of cases were filed in New York federal or state courts. We see a big drop off when you look at California and Florida, as well as other states.
Second, we're seeing increasing numbers of cases involving mobile applications, although web accessibility cases still basically form the bulk of the cases. Third, although any company can receive demand letters, or complaints alleging inaccessible websites, e-commerce companies are far and away the industry that is most targeted. That includes any company that offers a direct-to-consumer product or service. Finally, the UsableNet report notes that more than 40% of cases filed in federal court during 2024 were filed against companies that had already been sued. If you enter into one settlement, that doesn't preclude another plaintiff from suing the same company if portions of the website have not yet been remediated.
Chris Willis:
Got it. Well, amid all of this legal uncertainty, what can financial services providers do to mitigate the risk of a lawsuit, or reduce the possibility of significant liability if they are sued? I'd love for you to give some practical advice about how to assess whether a website is fully accessible. And if not, what can be done to remediate issues if the deficiencies are found?
Lori Sommerfield:
Well, first of all, let me just state that if a company has any concerns about whether its website is fully accessible, or its mobile apps for that matter, the best approach is to hire a qualified website accessibility consultant to come in and assess it for compliance against the appropriate WCAG standard. I recommend WCAG 2.2 AA. Then assist the company in remediating any deficiencies. That way, you know the current state of your website and whether it truly is deficient, and if so, what you need to do to rehabilitate it.
Importantly, I think it's very important to develop an ADA risk management program. It's not only the right thing to do for individuals with disabilities to make sure that digital assets are fully accessible to them, but a solid ADA risk management program can also serve as an effective affirmative defense if your company is sued. Some of the key elements of an ADA risk management program that companies should consider implementing are things like, first of all, properly coding new websites or new mobile apps that you're developing to conform with the appropriate WCAG standard, and then maintaining them. If you have to retrofit a website, or a mobile app, that is much more costly, of course.
Secondly, posting an accessibility statement on your digital assets. This basically underscores the company's commitment to ADA compliance and making a website or a mobile app accessible. It also provides a means for individuals with disabilities to seek technical assistance if they encounter any barriers on your website, or mobile app. You should do this by providing an email address, or an 800 number, or a TTY line for individuals who are deaf or hard of hearing.
It's also important to have a digital asset compliance policy. It’s a good idea to appoint an accessibility coordinator who can be in charge of having an enterprise-wide view of all of your digital assets and then coordinate accessibility issues across your company. It's also important to have a cross-functional committee that aids that accessibility coordinator that can help coordinate accessibility issues from a marketing, product perspective, technology, bringing all of those perspectives to bear.
Finally, it's very important to have appropriate training, scripts, and procedures for customer service representatives, so that they can quickly and effectively assist individuals with disabilities with any barriers they encounter on digital assets. Those are the things that I would recommend, Chris.
But I'd also like to note that there's really no silver bullet to accomplishing this quickly and inexpensively. You really have to put in the work to have your website assessed for any accessibility deficiencies, you've got to remediate them, and then you've got to maintain and monitor your websites and that dynamic content daily, weekly, monthly going forward in order to maintain accessibility.
A lot of companies are sometimes tempted to go with inexpensive widgets or overlays that make a website appear to be accessible, but yet it really isn't. It in effect creates a two-layered version of a website where the overlay, or the widget, sits over the original website to make it appear accessible. But under the DOJ regulations, this “separate but equal” experience doesn't really meet the letter and the spirit of what the DOJ expects. I don't think that widgets and overlays are a good idea. As I said, you need to put in the time, energy, and effort to genuinely make your digital assets accessible to individuals with disabilities.
Chris Willis:
That's great advice, Lori. I'm really glad that you came on the podcast today to remind our audience about how important this issue is, particularly in light of the escalating nature of the litigation here, which of course, won't be affected at all by an administration change, because it happens at the hands of private litigants in the federal court system. Thanks for being here today to talk about that, and thanks to our audience for listening to today's episode as well.
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