Many business owners are being sued because their company websites aren’t compliant with the Americans with Disabilities Act (ADA) or California’s Unruh Civil Rights Act.
If you receive a notice that your company is being sued because its website is not accessible, do not ignore it! You only have a short time to answer the complaint and should retain an attorney that handles these cases. While these may seem like a “scam” or “shakedown”, they can lead to a very real judgment if disregarded.
The Unruh Civil Rights Act
Unruh actions are on the rise in California, targeting businesses large and small. Many of these plaintiffs file dozens of cases every day.
The Unruh Civil Rights Act, found in California Civil Code § 51, gives protection from discrimination by all business establishments in California because of age, ancestry, color, disability, national origin, race, religion, sex and sexual orientation. The Act provides in subsection (b):
All persons within the jurisdiction of this state are free and equal, and no matter what their…disability….are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.
A plaintiff has two ways to establish a violation of the Unruh Act:
- The denial of access to a business establishment based on intentional discrimination; or
- A violation of the ADA.
The difference between these theories is that no proof of intentional discrimination is required to recover under an ADA violation theory. So, a violation of the ADA is a violation of the Unruh Act. In addition to a possible settlement, a business that loses against an Unruh accessibility claim will also be responsible for not only their own attorneys’ fees, but those of the plaintiff along with court costs, and the added expense of rectifying their site or mobile app after the fact.
For website accessibility cases, the plaintiff must assert that he or she visited the business's website, encountered discriminatory terms, and intended to make use of the business's services.
If successful, an Unruh Act plaintiff can recover:
- Special and general damages;
- An amount no less than $4,000 and no more than three times the special and general damages up to a maximum of three times the special and general damages, but in no case less than $4,000; and
- Attorney’s fees for each violation of the Act.
Finally, note that even if your business isn’t located in California, if you’re selling to any customers in the state, you may be sued under the Unruh Act in California courts.
The ADA prohibits discrimination “on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation…”
In defining a place of "public accommodation" subject to the Act’s protection, the ADA sets out 12 categories of "places" and "establishments" that mostly reference physical locations. It stands to reason that a business website isn’t included in these statutory categories since Congress enacted the ADA in 1990, well before we were all online for hours each day. Some courts, such as the Ninth Circuit (the federal Court of Appeals that includes California) has held that even if websites aren’t "public accommodations" under the ADA, a denial of equal access to a website can nonetheless support an ADA claim.
The Unruh Civil Rights Act and the ADA do not state specific standards for compliance. As such, courts are increasingly referring to the Web Content Accessibility Guidelines (WCAG) for guidance regarding legal claims for online accessibility non-compliance.
The WCAG is written by the World Wide Web Consortium, which collects resources from various web organizations to draft its international standards. The latest version of these standards can be found in the WCAG 2.1. Adhering to WCAG standards will ensure that your website is accessible to consumers with the following disabilities:
- Vision impairment (low vision or totally blind);
- Hearing impairment or who are totally deaf;
- Cognitive disabilities;
- Motor disabilities (such as the inability to operate a mouse or keyboard);
- ADHD; and
- Other similar disabilities.
To make sure your business website is compliant, hire a web accessibility consultant to audit your company’s website. Experts suggest that you conducted the following testing:
- Assistive technology.
The reason for this comprehensive approach is a that automated solutions cannot detect up to 70% of WCAG issues. Companies that address only automated results may be susceptible to further legal action.
If you are currently under contract with a web designer or consultant, verify that they make sure your website complies with current WCAG standards and the ADA.
Another option is to simply build a new accessible WCAG ADA & Unruh-complaint site. Look for a web design firm that specializes in building accessible websites.
In total, there are about 80 different guidelines in the current version of the WCAG, divided into levels of compliance (A, AA, and AAA). For each guideline, there are extensive discussions and examples of various implementations. In other words, making your website Unruh and ADA compliant is a major task that requires countless of hours of work, meticulous attention to detail, and substantial amounts of testing.
In addition, you may offer a 24/7 telephone line and create an accessibility statement, policy, and procedure.
If you are sued for a violation, immediately contact an attorney with experience defending these cases to help you develop the right strategy for your situation—whether that is fighting the case or an early settlement, which can almost often be accomplished. The attorneys at Eanet, PC have handled many of these cases, including against many of the plaintiffs firms that regularly file these cases and can help you navigate this complex landscape.
Be proactive and assess the level of accessibility of your business website. Your efforts now may avoid costly lawsuits in the future.