Wisconsin Agencies Hit with ADA Lawsuit Threats

The Americans with Disabilities Act of 1990 (ADA) has guided the construction and remodeling of buildings with public accommodations for 30 years now, improving access to retail businesses and other public places for persons with disabilities.

An unfortunate side effect to expanding opportunities for persons with disabilities, was expanding opportunities for trial attorneys to bring predatory lawsuits against businesses.  In the beginning, those lawsuits involved sending “testers” into retail businesses and having them take measurements of doorways, bathroom sinks and the like.

The result would be dozens of ADA lawsuits filed against businesses in a city, all at once.  All would be offered the opportunity to settle the suit for $5,000-$10,000.  Since hiring a lawyer to go to court would cost more than that, most business owners just paid the settlement and then went about fixing the violation that was found.

Enter the era of internet commerce, where consumers can find goods and services at websites rather than physical stores. Are these websites considered “public accommodations” under the ADA? If they are, then the “testers” don’t even have to visit your property. They can scan your website from anywhere in the U.S., find accessibility failings of your website and bring a lawsuit against you.

Certain law firms from outside of Wisconsin are conducting this testing on our websites, in recent weeks.  I know this because I’m receiving calls from PIA members who have received demand letters asking for $5,000 to avoid a lawsuit.

Federal courts around the nation are widely split on whether websites are fair game for these lawsuits. The 7^th Circuit Court of Appeals, covering Wisconsin, Illinois and Indiana, has not set a clear precedent on the matter. Therefore, it is hard to predict how a court here would rule on the question. However, the U.S. Supreme Court has agreed to hear a website ADA lawsuit during its 2023-2024 session. This means that we should have an answer about a year from now, in the summer of 2024.

In the meantime, Wisconsin businesses continue to receive letters threatening lawsuits if they don’t pay up. While I’m not an attorney and I can’t provide legal advice, I can tell you what I know:

I know that a letter threatening a lawsuit is not a lawsuit. There is no more obligation to respond to such a letter than to any other phishing-type letter or email you might receive.

I know that the Ohio law firm behind the recent round of ADA lawsuit threats does not have an attorney barred in Wisconsin, because one PIA member’s attorney looked into that and told us so. This suggests they are not prepared to go to court at this time.

I know that a response to such a letter could make you stand out among the thousands of targeted businesses receiving these letters. Kind of like that first tug on a fishing line that tells a fisherman to set the hook.

I know that paying a settlement to anyone does not fix an accessibility shortcoming in your website. Nor does it prevent other parties from bringing additional claims against you, knowing that you’ve already settled once.

I know that businesses building or redesigning their websites should take website accessibility into account. Consider having your website designed to follow Web Content Accessibility Guidelines (WCAG), because it’s better to spend your money building a better website than settling accessibility claims.

I know that, prior to building a WCAG-compliant website, businesses can add an accessible link to their websites – directing users to a place where they can report accessibility issues and contact the business through alternative means, such as email, phone or chat.

I know that, if the Supreme Court says websites are public accommodations, the number of ADA lawsuits will explode and the big winners will be unscrupulous trial attorneys.

Have you received a letter threatening an ADA accessibility lawsuit? Please send me a copy at phanson@piaw.org, or give me a call at (608) 274-8188. I’m very interested to learn the details and follow the progress of these cases.