Americans with Disabilities Act-Based Lawsuits Targeting Air Carrier Websites: Mitigating the Risks Associated With an Emerging Trend

Air carriers have not been a traditional target of website accessibility lawsuits based on the Americans with Disabilities Act of 1990 (“ADA”). Instead, plaintiffs typically target retail, hospitality, and other industries. However, we may be seeing the beginning of an unwelcome trend, namely, plaintiffs targeting air carriers with ADA-based lawsuits alleging that their websites are inaccessible to disabled users.

This Client Bulletin provides a brief overview of ADA-based accessibility litigation, examines a recent ADA-based putative class action against an air carrier relating to website accessibility that was successfully defended by the authors of this Bulletin, and provides practical suggestions about mitigating air carriers’ exposure to ADA-based website accessibility lawsuits (or enforcement actions by the U.S. Department of Transportation (“DOT”)).

Overview of ADA-Based Accessibility Litigation

The ADA prohibits, among other things, discrimination on the basis of disability affecting a person’s “full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.”1 The ADA defines “public accommodation” to include twelve (12) broad categories of entities, including restaurants, hotels, recreation facilities, private educational facilities, and various service establishments.2

The U.S. Department of Justice (“DOJ”), which has been tasked with promulgating regulations pursuant to the ADA, has stated that the ADA’s requirements apply to all the goods, services, privileges, or activities offered by public accommodations, including those offered on the web.

In this context, a veritable cottage industry has emerged wherein serial plaintiffs sometimes file hundreds of lawsuits against businesses pursuant to the ADA alleging that these businesses’ websites do not comply with the requirements of the ADA.  Indeed, it is estimated that plaintiffs will file approximately 4,220 ADA website-related lawsuits by the end of 2023, which is nearly double the 2,314 cases filed in 2018.3  It is not uncommon for plaintiffs to pursue such claims as putative class actions.

Courts generally have been liberal in interpreting whether a plaintiff has standing to sue under the ADA, with some courts even permitting standing where a plaintiff never had any intention of using the goods or services provided by a defendant and accessed the website with the sole intention of testing its compliance with the ADA.  This is commonly known as ADA “tester” standing.  In the context of website accessibility, these lawsuits are sometimes referred to as “surf-by” lawsuits, as plaintiffs or plaintiffs’ counsel search a company’s website for alleged ADA accessibility violations and then file an ADA-based lawsuit if any violations are identified, often without contacting the company to seek remediation of the alleged violations.

Compounding the issue, the DOJ has never issued regulations providing clear guidance about the level of necessary compliance. The DOJ previously issued an Advanced Notice of Proposed Rulemaking that it would adopt Web Content Accessibility Guidelines (“WCAG”) 2.0, which is a set of international accessibility recommendations published by the World Wide Web Consortium (“W3C”), as the standard for websites to comply with the ADA under Title III. However, the DOJ never implemented this standard and withdrew the proposal on December 27, 2017.

Currently, the DOJ notes that it “does not have a regulation setting out detailed standards” for website accessibility compliance and that businesses have “flexibility in how they comply with the ADA’s general requirements of nondiscrimination and effective communication.”4 The absence of clear regulatory standards provides fertile ground for plaintiffs to claim that a website is inaccessible.

Because these cases can be costly to defend and because the ADA provision allowing for the recovery of reasonable attorneys’ fees by the “prevailing party”5 has been interpreted in a manner that is favorable to plaintiffs,6 some defendants choose to settle these cases quickly. As a result, plaintiffs have been emboldened to file more lawsuits.7

ADA-Based Website Accessibility Lawsuits Against Air Carriers

As noted above, air carriers have not been a traditional target of ADA-based website accessibility lawsuits. Unfortunately, that historical pattern may not hold, as there has been a recent uptick in the number of ADA-based website accessibility lawsuits against air carriers. However, air carriers have potentially potent defenses available in ADA-based website accessibility lawsuits as demonstrated by the defense of Hussein v. Spirit Airlines, Inc., a putative class action which was filed in the U.S. District Court for the Northern District of Illinois (Chicago) on June 2, 2023.

Plaintiff Hussein alleged that she “is a visually-impaired and legally blind person who requires screen-reading software to read website content using her computer”8 and that she was unable to complete a purchase for roundtrip air transportation due to the alleged inaccessibility of the air carrier’s website.

Specifically, Plaintiff claimed that the air carrier had failed to design its website in a manner that is compatible with screen access programs and that as a result of multiple accessibility barriers she was unable to understand and properly interact with the website, which denied her the benefit of purchasing a ticket for air transportation.9  Plaintiff sought injunctive relief, including enforcing compliance with the WCAG 2.1 guidelines.  (The WCAG 2.1 guidelines are the latest website accessibility guidelines published by W3C.)10

Plaintiff sought to represent a class defined as “all legally blind individuals in the United States who have attempted to access Defendant’s Website and as a result have been denied access to the equal enjoyment of goods and services, during the relevant statutory period.”11

In response, Spirit Airlines filed a Motion to Dismiss the Class Action Complaint on the grounds that the accessibility of its website is governed exclusively by the Air Carrier Access Act of 1986 (“ACAA”) and the DOT’s regulatory regime promulgated thereunder, and not by the ADA.12 This issue had never been directly addressed in any reported Court decision and, thus, the Motion presented an issue of first impression.

Spirit Airlines argued that the ACAA prohibits air carriers from engaging in disability-based discrimination relating to air travel services and Congress vested the DOT with the authority to promulgate and enforce regulations pursuant to the ACAA.  Additionally, the DOT has issued comprehensive regulations that set forth detailed requirements relating to air carrier website accessibility for the disabled. See 14 C.F.R. § 382.43(c)(1) (adopting WCAG 2.0 Level AA accessibility standard); 14 C.F.R. § 382.43(c)(2) (requiring air carriers to test their websites with input from individuals with disabilities or members of disability organizations); 14 C.F.R. § 382.43(c)(4) (requiring air carriers to provide assistance through other channels to individuals who cannot use a website due to their disability).

Spirit Airlines argued that the plain text and legislative history of the ADA demonstrates that Congress intended the ACAA—and not the ADA—to address air travel services.  The express statutory text of the ADA covers “transportation by bus, rail, or any other conveyance (other than by aircraft) . . . .”,13 thus excluding transportation by aircraft from coverage. Further, a Report from the House of Representatives explains that “[t]he Committee excluded transportation by air [from the definition of the term ‘public transportation’] because the Congress recently passed the Air Carrier[] Access Act, which was designed to address the problem of discrimination by air carriers and it is the Committee’s expectation that regulations will be issued that reflect congressional intent.”14

Because Plaintiff’s allegations clearly implicated “core air travel services”15 (e.g., booking a flight reservation) on Spirit Airlines’ website that are exclusively subject to the DOT’s website accessibility regulations promulgated pursuant to the ACAA, Spirit Airlines argued that Plaintiff’s ADA claim should be dismissed with prejudice.  Spirit Airlines also argued that any amendment to the Class Action Complaint would be futile because the ACAA does not provide litigants a private right of action.  Plaintiff’s only recourse would be to file an administrative complaint with the DOT pursuant to the ACAA, as per the express dictates of Congress.16

Rather than oppose Spirit Airlines’ Motion to Dismiss, Plaintiff voluntarily dismissed the case with prejudice on July 21, 2023.17

Key Takeaways

While the outcome of the Hussein case underscores that air carriers have a potentially potent legal defense to ADA-based website accessibility lawsuits, with the volume of these lawsuits increasing year after year, and the recent increase in ADA-based website accessibility lawsuits against air carriers, it is important for air carriers to take steps to mitigate the risk of such lawsuits (or a DOT enforcement action), including:

  1. Regularly testing their primary websites with accessibility tools to determine their compliance with the WCAG 2.0 Level AA guidelines.
  2. Remediate identified deficiencies.
  3. Seek feedback on website features and usability from the disabled community, including individuals and/or disability advocacy groups.
  4. Consider adding mandatory arbitration clauses and class action waivers to website terms and conditions.

There are many ways that air carriers can improve their website accessibility compliance and mitigate their associated legal and regulatory exposure. This Bulletin provides a sampling of best practices that air carriers should consider. Ultimately, risk awareness coupled with multidisciplinary collaboration will allow companies to better prepare for and reduce the risk of being the target of ADA-based website accessibility litigation.

Disclaimer: This publication is made available for educational purposes only and is not intended as legal advice. If you have questions about any matters in this publication, please contact the authors directly.  General inquiries may be directed to

1 42 U.S.C. § 12182(a).

2 42 U.S.C. § 12181(7).

3 Gus Alexiou, Website Accessibility Lawsuits Rising Exponentially In 2023 According To Latest Data, Forbes (June 30, 2023 , 7:20 AM),

4 Guidance on Web Accessibility and the ADA,, (last accessed August 9, 2023).

5 42 U.S.C. § 12205.

6 The standard for a plaintiff to be considered the prevailing party is permissive.  It requires that plaintiffs only “succeed on any significant issue in litigation which achieves some of the benefit [the plaintiff] sought in bringing suit.” Evans v. Cernics, Inc., No. 3:14-CV-125, 2018 WL 1181755, at *1 (W.D. Pa. Mar. 5, 2018) (emphasis added) (quoting Ward v. Philadelphia Parking Auth., 634 F. App’x 901, 903 (3d Cir. 2015)).  In contrast, “[a] fee award to a prevailing defendant is appropriate only when the suit is brought in bad faith or when it is ‘frivolous, unreasonable, or without foundation.’” A.C. v. Taurus Flavors, Inc., No. 15 C 7711, 2017 WL 497765, at *3 (N.D. Ill. Feb. 7, 2017) (quoting Adkins v. Briggs & Stratton Corp., 159 F.3d 306, 307 (7th Cir. 1998)).

7 The tide could be beginning to turn, however, because the U.S. Supreme Court has granted a writ of certiorari in Acheson Hotels, LLC v. Laufer, 143 S. Ct. 1053 (2023)—a particularly egregious case involving “tester” standing where the plaintiff has filed over 600 ADA-based accessibility lawsuits in the last five years—to address (and potentially materially change) the permissible circumstances under which a plaintiff has standing to sue pursuant to the ADA, including the extent to which “tester” standing itself in appropriate in ADA cases.  Notably, on July 24, 2023, the Plaintiff-Respondent filed a Suggestion of Mootness informing the Court that she voluntarily dismissed the subject action in the District Court with prejudice and urging the Court to dismiss the pending appeal as moot.  See Suggestion of Mootness, Laufer, 143 S. Ct. at 1053,….pdf.  On July 28, 2023, the Defendant-Petitioner filed an Opposition to the Suggestion of Mootness accusing the Plaintiff-Respondent of strategic gamesmanship to avoid an unfavorable ruling on the extent of ADA standing and urging the Court to retain jurisdiction to decide the question presented.  See Petitioner’s Opposition to Suggestion of Mootness, Laufer, 143 S. Ct. at 1053,

8 Class Action Complaint and Demand for Jury Trial, ¶ 2, ECF No. 1, Hussein v. Spirit Airlines, Inc. No. 1:23-cv-3483, (N.D. Ill. filed June 2, 2023) (“Class Action Complaint”).

9 Id. ¶ 24.

10 Even though the WCAG 2.1 guidelines were published approximately ten years after the WCAG 2.0 guidelines, W3C has explicitly stated “[t]he publication of WCAG 2.1 does not deprecate or supersede WCAG 2.0.”  Web Content Accessibility Guidelines (WCAG) 2.1, (last accessed August 9, 2023).

11 Class Action Complaint ¶ 56.

12 See Memorandum of Law in Support of Defendant Spirit Airlines Inc.’s Motion to Dismiss Plaintiff’s Class Action Complaint with Prejudice Pursuant to Fed. R. Civ. P. 12(b)(6), ECF No. 8, Hussein v. Spirit Airlines, Inc. No. 1:23-cv-3483, (N.D. Ill. June 27, 2023), available here and also at:

13 42 U.S.C. § 12181(10).

14 H.R. Rep. 101-485(II), at 121 (1990), reprinted in 1990 U.S.C.C.A.N. 303, 404.

15 See 14 C.F.R. § 382.43(c)(1)(i)(A).

16 See 49 U.S.C. §§ 46101(a)(1), 41705(c); Stokes v. Sw. Airlines, 887 F.3d 199, 202-03 (5th Cir. 2018); Lopez v. JetBlue Airways, No. 10-CV-1552 JG JMA, 2010 WL 3311428, at *3 (E.D.N.Y. Aug. 19, 2010), aff’d sub nom. Lopez v. Jet Blue Airways, 662 F.3d 593 (2d Cir. 2011).

17 Stipulation of Dismissal, ECF No. 12, Hussein v. Spirit Airlines, Inc. No. 1:23-cv-3483, (N.D. Ill. dismissed July 21, 2023).