Last month alone, more than 400 lawsuits were filed against businesses across the country alleging that their websites are not accessible to people with visual impairments and other disabilities.
And a growing number of those cases are filed by Racine resident Melissa McCabe.
A search of the federal courts system shows that McCabe, who is blind, has filed over 30 lawsuits over the past two years, including several against Wisconsin-based companies like Anodyne Coffee and Koss Corporation. She alleges that the businesses' websites were incompatible with screen readers when she tried to purchase items like roast coffee, shoes, a violin, headphones, car tires, and more.
She's one of more than 100 plaintiffs with visual impairments who are using "tester lawsuits" to push businesses to evaluate their websites for compliance with the Americans with Disabilities Act.
But while disability advocates say that making websites accessible should be a priority for all businesses, critics argue that the lawsuits are largely profit-motivated. In many cases, the plaintiffs have no intention to purchase products or conduct business with the companies they are suing, they say.
Benjamin Sweet, McCabe's attorney, declined Public Investigator's request for comment on the ongoing legal cases.
"While our client would love to say more it is our policy not to comment on pending litigation," he wrote in an email.
Most of the lawsuits are nearly identical, with small changes made to highlight certain accessibility challenges on the companies' websites.
In the Anodyne lawsuit, McCabe alleges that "when a user selects the ‘Tickets’ button on the ‘Concerts & Events’ page, a popup appears which displays information regarding upcoming events. However, the popup is not accessible to screen-reader users."
In the Koss case, among other concerns, McCabe's attorneys state that the product manuals for items like headphones and speakers are not accessible to users relying on screen readers.
The two companies did not respond to requests for comment.
In October, a month after McCabe filed suit, Anodyne Coffee updated its website with a statement detailing the company's investment in a "significant amount of resources to help ensure that its website is made easier to use and more accessible for people with disabilities."
The rise of 'serial plaintiff' accessibility lawsuits
When the Americans with Disabilities Act was passed in 1990, there were no clauses addressing website accessibility.
Though the World Wide Web was launched just three years later, the federal government never established detailed standards for applying the ADA to the websites of private businesses.
Robert Thorpe, an attorney for Washington, D.C.-based law firm Barclay Damon, has defended several companies against digital accessibility lawsuits. He said many of the cases introduced in the past three years "simply aren't plausible."
Thorpe began tracking such lawsuits in 2020 after a small bed-and-breakfast in upstate New York was sued over its online reservation service. Since then, Thorpe's law firm has identified over 100 plaintiffs who have filed hundreds of lawsuits over the accessibility of businesses' websites.
One plaintiff that Thorpe's law firm has tracked since 2015 filed over 500 lawsuits
within a five-year time frame.
"It is rare to see this level of litigation by one plaintiff over and over again," Thorpe said.
Experts say the surge in lawsuits coincided with growing awareness about services like UsableNet, a company that uses AI and human experts to quickly evaluate accessibility issues on websites and offers summary reports in minutes.
In the lawsuits, the attorneys representing McCabe argue that inaccessible websites unfairly force blind or visually impaired individuals to exert additional time and effort to "overcome communication barriers sighted users do not confront."
These attorneys cite March 2022 guidance issued by the U.S. Department of Justice Civil Rights Division that states the ADA applies "to all the goods, services, privileges, or activities" offered by businesses open to the public, "including those offered on the web.”
However, Thorpe finds it unlikely that plaintiffs like McCabe are legitimately seeking services or products from the hundreds of companies they are suing. He said it is more likely they are taking advantage of the law for financial gain.
"Settlements range between as low as $1,000 to as high as $25,000," Thorpe said.
Denise Jess, executive director of the Wisconsin Council of the Blind and Visually Impaired, said seeking legal action against companies would likely be a last-case scenario for most people with disabilities.
Disability advocates usually try to lead with education, push for legislation, and then, if necessary, resort to litigation, she said.
"We want business owners to do the right thing because they would value us as participants in their business," Jess said. "We want them to do it because they see the value of including a diverse population rather than being afraid that they're going to get sued."
In recent years, Jess said, these "serial plaintiff" lawsuits have caused business owners to respond defensively to calls from customers with disabilities asking for assistance. As a result, some customers encountering challenges choose not to raise the issue at all.
"The blowback of these lawsuits is that it just raises everybody's anxiety," Jess said.
Thorpe said most businesses already have an incentive to ensure their products are available to as many customers as possible, including those with disabilities. In the cases he's handled, the companies usually respond by hiring a web developer to improve the functionality of their sites.
"It would be great if these plaintiffs were reaching out to the businesses in advance of filing a lawsuit, putting them on notice of the issues, and giving the chance to fix whatever is a problem," Thorpe said. "But the vast majority of these cases, that's not happening. Instead, we're just getting lawsuit after lawsuit."
How can businesses check if their websites are ADA accessible?
Hire a reputable company to do an accessibility audit and find out how accessible your website is
Establish a path of communication for individuals to flag and resolve accessibility issues
Work with a website developer to test the site's compatibility with screen readers and add features like alternative text
When contracting with a web developer, ask them to explain their familiarity with building for accessibility
Recognize that usability and accessibility are two different standards. Ensure that web designers have the ability to test for bugs in the system that might alter the screen reading process.
Tamia Fowlkes is a Public Investigator reporter for the Milwaukee Journal Sentinel. She can be reached at tfowlkes@gannett.com.
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