The Kansas House of Representatives is considering a law that would impose penalties on certain plaintiffs who file lawsuits under the Americans with Disabilities Act (ADA).
Introduced by state representative Ken Corbet (R), House Bill (HB) 2423 is sponsored by the Kansas Committee on Taxation. As currently written, the bill would allow courts to determine whether accessibility lawsuits qualify as “abusive litigation.”
Courts can make that determination based on several factors, including the “number of substantially similar actions filed by the same plaintiff, lawyer, or law firm" and whether the defendant was given an opportunity to address alleged access violations prior to litigation.
If a court determines that a lawsuit is abusive, the defendant may be awarded reasonable attorney fees and punitive damages. Punitive damages are limited to “three times the amount of the attorney fees" awarded by the court.
The ADA prohibits private businesses from discriminating against people with disabilities
Under Title III of the ADA, places of public accommodation must make reasonable efforts to provide full and equal enjoyment of their goods and services to people with disabilities.
“Places of public accommodation" refers to all businesses open to the public. According to the Department of Justice, websites and mobile apps qualify as places of public accommodation.
The authors of HB 2423 seem to agree. The act explicitly applies to digital accessibility discrimination lawsuits.
“For the purposes of this section, ‘public accommodation’ includes a website operated by a resident of this state,” the bill reads.
Related: Lawsuits Are On The Rise… Is Your Website At Risk?
A small number of plaintiffs are responsible for most ADA lawsuits
It’s likely that HB 2423 is a response to the current wave of web accessibility lawsuits. In 2022, at least 2,387 digital accessibility cases were filed in federal court or in California State Court under the Unruh Act.
More than 66% of those lawsuits were filed by five law firms. In some cases, individual plaintiffs filed nearly identical claims against dozens of different businesses.
By imposing penalties for “serial filers,” HB 2423 would attempt to limit abuse. However, disability advocates have criticized the bill as too broad.
““[The law] would have a chilling effect on persons with accessibility claims from exercising their right to enforce equal access through the courts,” Barb Conant, co-administrator of the KanCar Advocates Network, told the Kansas Reflector. “Kansas law already has safeguards in place to prevent frivolous or abusive litigation.”
Related: 5 Web Accessibility Barriers Frequently Cited in ADA Lawsuits
ADA lawsuits are common, but not necessarily frivolous
ADA lawsuits are often expensive, and in many states, defendants cannot recover legal fees from plaintiffs. Given the high costs of litigation and remediation, business owners often perceive ADA lawsuits as abusive.
However, the simple fact is that the vast majority of websites have serious usability issues that affect people with disabilities. According to a 2022 analysis performed by WebAIM (Web Accessibility in Mind), 96.8% of the internet’s top 1 million homepages had detectable barriers.
Those barriers have a real impact. Many ADA web accessibility lawsuits have merit — even when plaintiffs file dozens of lawsuits citing the same types of failures.
And given the strong business case for accessible digital media, businesses should adopt inclusive design as soon as possible. Reducing the number of ADA lawsuits is a short-term solution. As the number of internet users with disabilities continues to grow, digital accessibility must become a priority for organizations of every size.
Related: Are Fraudulent ADA Website Lawsuits Common?
Digital accessibility is good for business — and essential for compliance
The Web Content Accessibility Guidelines (WCAG) are the international standards for digital accessibility. While the ADA does not contain technical requirements for web content, the Justice Department recommends testing web accessibility with the latest version of WCAG.
Websites that follow WCAG can reach more users and deliver better experiences. Accessible websites also tend to perform better in search engine rankings, and they’re often less expensive to build and maintain.
Ultimately, the benefits of accessibility far outweigh the costs. State and federal law should support accessible experiences — and restricting the rights of plaintiffs is a move in the wrong direction.