There are three noteworthy updates/developments to the ADA website compliance landscape for 2023.
- Decrease in litigation
- DOJ Title II regulation
- WCAG 2.2 release
Litigation Will Decrease
First, litigation will continue to decline due to court decisions in California and New York that have been bad for plaintiffs.
This doesn’t mean demand letters and lawsuits will stop, but it does mean plaintiffs’ law firms will have to put in more effort.
Here is how the court decisions will impact plaintiffs in 2023:
- There are less targets to sue
- More effort will have to go into the claims of inaccessibility
- There are less courts to file “ADA website” complaints in
Some law firms involved in serial litigation have already dropped off the map, very likely for fear of sanctions.
The Department of Justice (DOJ), the regulatory and enforcement agency behind Title II and Title III of the ADA has announced that it intends to publish a Notice of Proposed Rulemaking (NPRM) for website accessibility under Title II of the Americans with Disabilities Act (ADA).
This will not directly affect private entities.
However, it is very likely that this regulation will impact Title III regulation that is soon to follow, presumably.
And by impact, we could see very similar requirements of private entities. Thus, this regulation is a key development.
We could finally see website accessibility regulation for private entities (i.e., businesses, non-profits, etc.) by 2024 or 2025.
WCAG 2.2 Release
Although WCAG 2.2 issues won’t be cited by plaintiffs’ lawyers anytime soon, the official release of WCAG 2.2 is notable.
What will be interesting is how and whether the DOJ (or any other authorities) reference the new version of the Web Content Accessibility Guidelines.
Do authorities see WCAG 2.1 AA as enough for compliance?
Will they be immediately receptive to the new release?
Watch how WCAG 2.2 is treated and talked about by officials (both in the U.S. and abroad). This will give us a good idea of whether the new version will be incorporated into the law.
Besides the waves made from the above, I think 2023 litigation against private entities will largely feel like it has in the second half of 2022.
There will still be a core group of law firms that will continue to pound away with demand letters and complaints.
And there are a few newcomers to litigation that will follow in the footsteps of notorious plaintiffs firms like Pacific Trial Attorneys, Marcus & Zelman, Stein Saks, Gottlieb & Associates, and others.
However, I do think defense attorneys will have more success in lowering settlement amounts and having cases dismissed.
One more thing — I think overlays will face even more scrutiny and criticism as the ineffectiveness of their widgets continues to become mainstream.
The automated “solution” lie is hard to both carry and dance around.