The digital age, with its incredible proliferation of online businesses, platforms and tools, has brought forth new considerations under existing legal structures. One such intersection lies in the adaptation of the Americans with Disabilities Act (ADA) to digital platforms and the ensuing debate around the role of technology in determining legal standing. The ADA was enacted in 1990 for the purpose of ensuring non-discrimination on the basis of disability. While the initial act focused more on physical accommodations, as the internet became more central to daily life, the need for digital accessibility became evident. To ensure digital accessibility, many have turned to the Web Content Accessibility Guidelines (WCAG), a set of recommendations designed to make web content more accessible to people with disabilities. While the ADA doesn’t specifically mention WCAG, it has become the de facto standard for determining website accessibility under the act.

For website developers or users, this means that a website must be compliant with both the ADA and, by reference, the WCAG standards for accessibility. This includes tests for appropriate colors, contrast, readability, etc. It also means that images must include narrative descriptions and links must have the ability to be audibly designated. In short, a website must be reasonably accessible by disabled individuals, including the blind and visually impaired. All good goals.

Testers

In the context of the ADA, “testers” are individuals or groups who, regardless of whether they have a disability, assess the accessibility and compliance of public accommodations or services. Their goal is often to identify ADA violations and bring them to the attention of relevant authorities or the courts. The use of testers is a common tactic in civil rights enforcement, not just for ADA issues but also for matters such as housing discrimination.

The role of testers in ADA litigation is multifaceted: Testers help to gather evidence of non-compliance. By visiting places of public accommodation (like stores, restaurants or hotels) or testing services, they can document barriers or discriminatory practices. Because testers often go into situations without a personal grievance (they are there specifically to test compliance), they can offer an objective report on the accessibility of a location or service. If testers identify violations, their findings can be the basis for legal actions. Organizations might sue on their behalf or use their evidence to support claims by others.

However, the standing of testers to sue under the ADA has been a point of contention. The legal doctrine of “standing” requires that a plaintiff have a concrete and particularized injury that is traceable to the challenged action of the defendant. The problem for traditional testers is that they suffer no actual injury. In Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982), the Supreme Court held that testers (who posed as renters to detect racial steering practices) had standing to sue, even though they had no actual intention of living in the apartments they pretended to want to rent. The court found that such testers served a vital function in ferreting out discrimination and, subsequently, Congress had expressly given testers a right to sue under some provisions of some statutes for exactly this reason.

Websites as ‘Public Accommodations’

Over the years, a number of lawsuits have pushed the boundaries of ADA’s application to digital platforms. In Gil v. Winn-Dixie Stores, Inc. (2017), a visually impaired individual claimed he could not access prescription refills or store coupons due to the store’s website’s inaccessibility. The court ruled in favor of Gil, affirming that websites with connections to physical stores fall under the ADA’s purview. A slightly more nuanced approach was taken in Robles v. Domino’s Pizza, LLC (2019), where the federal Ninth Circuit found that the pizza chain’s brick-and-mortar stores were public accommodations governed by the ADA and that the website, which provided a means to order from the physical store, was therefore also covered by the accessibility requirements.

As more businesses move online and as the ADA’s digital application becomes clearer, lawyers have spotted a niche. Potential damages, which can be thousands of dollars per violation, combined with the possibility of attorney’s fees, make these suits lucrative. Moreover, for many lawyers, the motivation isn’t merely monetary; the broader goal is to foster a more inclusive digital landscape.

Robot Lawsuits

Unlike the housing testers in Havens Realty, online robotic testers can be unleashed to “visit” hundreds of thousands of “accommodations” an hour. A bot can scan websites to look for those that are not ADA/WCAG compliant and generate an automated email to the domain administrator about the problem coupled with a threat to sue. The AI program can then generate a civil complaint alleging violations of the ADA, including the website address and the reasons that the site was non-compliant. The bot might allege that the website improperly required it to certify that it was not a robot and click on all images of a bicycle to access.

All that is needed at that point is a dummy plaintiff – for example, a blind person who would say, “I would have bought [name product or service] from [name website] but was unable to do so because [name deficiency].” In fact, if you place the bot or the visually impaired plaintiff in a specific jurisdiction (like California), you may be entitled to injunctive relief (an order that the website becomes compliant) and damages where the ADA does not actually provide for damages. What the ADA does provide for, however, is attorney’s fees. And these fees have nuisance value. A small business may receive the lawsuit in California together with a demand that they pay the lawyer’s fees, which could be $15,000-$30,000. If the website is truly noncompliant and they fight the matter, the plaintiff’s lawyer’s fees increase. Often, the plaintiff will simply PTFM—pay the freaking money—to make the suit go away. In fact, the law firm might agree to act as permanent “monitor” for the website—ensuring that it remains compliant—for a price, Ugarte … for a price. The lawyer makes money and the nominal plaintiff? Well, the nominal plaintiff has the ability to buy those pairs of socks for their pet rabbit or the crocheted dog sweater.

The idea of standing is central to ADA-related web accessibility suits. If automated tools can generate legal standing, countless businesses might find themselves on the defensive, even if no human user has experienced discrimination due to their website’s design.

While ensuring ADA compliance is fundamentally about fostering inclusivity, there are concerns:

Financial impact on small businesses: Small entities without the resources to revamp their sites might face disproportionate financial burdens, potentially jeopardizing their operations.

Overzealous litigation: If machines could establish standing, the courts might get flooded with cases. This could detract attention from genuine instances of discrimination and harm.

Acheson Hotels v. Laufer and the Notion of Harm

In a case argued before the Supreme Court,, Deborah Laufer, a self-proclaimed “tester,” alleged that Acheson Hotels did not provide adequate accessible information on its website. The heart of the matter lies in whether Laufer, despite never intending to use the hotel’s services, suffered harm due to its digital noncompliance. While the First Circuit Court of Appeals believed that the mere omission of ADA-required information constituted injury, others argued that for true harm (and thus, standing) to exist, a tangible, personal experience of discrimination or inconvenience must occur. Compounding the problem is the fact that Congress expressly provided for tester standing for some parts of the ADA.

This case magnifies the challenges businesses face. On one hand, they must ensure digital inclusivity. On the other, they grapple with the possibility of facing lawsuits even when no individual has faced actual discrimination.

Robots, Standing and the Future of ADA Litigation

The dummy plaintiff—the blind Californian who allegedly suffered harm by not being able to go to the tens of thousands of noncompliant websites—suffered no real harm and never intended to go to those websites, but they may act as a proxy for impaired persons who later do want to go to that site but can’t. Forcing the website to comply with the ADA is, overall, a good thing. Extorting tens of thousands of dollars in legal fees for lawsuits essentially generated by ChatGPT, on the other hand, is not so good.

Conclusion

As technology and the legal realm intersect, unprecedented challenges emerge. While fostering a digitally inclusive environment remains paramount, how this is achieved—and the role of AI in this quest—requires careful consideration. Balancing the genuine needs of the disabled community with the practical implications for businesses will be central to shaping the future of ADA compliance in the digital age. Next, you will see signs on websites: “No Dogs or Robots.” But on the Internet, nobody knows we are dogs.