Recently, a number of businesses have been the recipients of demand letters and/or lawsuits alleging their websites are not accessible to persons with visual disabilities. Typically, most of the demands seek a settlement of $5,500, which includes the minimum statutory penalty of $4,000 plus attorneys fees of $1,500. These claims are made for violations of California’s Unruh Act, enacted in 1959 and named for its author, Jesse M. Unruh. The Unruh Civil Rights Act is codified as California Civil Code Section 51. Some pro-plaintiff ADA lawyers have made it their business model to use this Act to their financial advantage.
The Unruh Civil Rights Act provides that all persons are entitled to full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever. In 1992, the Unruh Act was amended to provide that “[a] violation of the right of any individual under the Americans with Disabilities Act of 1990… shall also constitute a violation of this section The Ninth Circuit has since held that violating the ADA is a per se violation of the Unruh Act.
The Ninth Circuit Court in Robles v. Domino’s Pizza, LLC held that the ADA applies to websites and mobile apps that connect customers to the goods and services of restaurants and other places of public accommodations. The Court also found that Dominos had adequate notice of the law regarding website accessibility.
Under the Unruh Act, a plaintiff is entitled to recover damages in an amount up to three times the actual damages for each violation of the Unruh Act, “but in no case less than $4,000…” for each and every offense and, any attorney’s fees that may be determined by the court in addition thereto.
A plaintiff does not have to prove the website owner acted with intent when the underlying violation of the Unruh Act is an ADA violation.
The crux of the problem is that when the ADA and California’s Unruh Act were enacted in the early 1990s, neither Congress nor California’s legislature adequately anticipated the crucial role that the internet would have in peoples’ lives in the 21st Century, and instead focused on discrimination based on disability that occurred in person or through personal interactions.
Which Website Guidelines Apply?
As of this writing, the Website Content Accessibility Guidelines (“WCAG”) 2.0 or the WCAG 2.1 level AA, do not apply as a matter of law and a failure to comply with WCAG is not a per se violation of the ADA. Trial courts, however, “can order compliance with WCAG 2.0 as an equitable remedy if, after discovery, the website and app fail to satisfy the ADA.” Thurston v. Midvale Corp. d/b/a Whisper Lounge.
The Department of Justice is charged with rulemaking to provide clear requirements for compliance of laws. However, the DOJ has abdicated its role – not only under the Trump administration – but going back to 2010. The DOJ took steps toward establishing these rules and was very close to adopting the Web Content Accessibility Guidelines (WCAG 2.0 A, AA), however the Trump administration suspended all rulemaking – despite the call from business groups and advocates alike. This gap has been left to the courts and state legislatures to fill. While it is uncertain, most expect the Biden administration to adopt rules based on the Web Content Accessibility Guideline.
The WCAG is an internationally recognized set of guidelines for digital accessibility. The WCAG is currently in version 2.1 and comes in 3 levels: A, AA, AA. The de facto standard recognized most courts and advocates is the WCAG 2.0 AA. Version 2.1 emerged in 2018 and website owners are now being held to this standard. These are the requirements that virtually all demand letters, federal and state lawsuits have cited. Regardless of how firm this standard may technically be, in practice, if you wish to avoid litigation and wish to make your website accessible, the working standard for digital accessibility in 2021 is WCAG 2.1 AA.
Website accessibility standards break down to four basic principles: Perceivable, Operable, Understandable, Robust. The following overview includes limited examples.
- Perceivable – Information and user interface components must be presentable to users in ways they can perceive. This means that users must be able to perceive the information being presented. Examples include providing text alternatives for non-text content; providing captions and other alternatives for multimedia; creating content that can be presented in different ways, including by assistive technologies, without losing meaning; and making it easier for users to see and hear content.
- Operable – User interface components and navigation must be operable. Examples include makink all functionality available from a keyboard; giving users enough time to read and use content; not using content that causes seizures; and helping users navigate and find content.
- Understandable – Users must be able to understand the information as well as the operation of the user interface. Examples include: making text readable and understandable; making content appear and operate in predictable ways; and helping users avoid and correct mistakes.
- Robust – Content must be robust enough that it can be interpreted reliably by a wide variety of assistive technologies.
What About Third-Party Content On a Website?
In Thurston v. Midvale Corp. d/b/a Whisper Lounge, the Court ruled “appellant offers no legal support for the theory that it cannot be liable for ADA discrimination if it hires someone else to do the discrimination.” Thus, a website that is refreshed with listings and photographs from a third-party vendor cannot offer that as a defense.
What About Providing An Alternative Means of Access?
The Thurston v. Midvale Corp. d/b/a Whisper Lounge case also ruled that telephone access was not an accessibility alternative as the service was not available 24/7. No Court has yet ruled on whether 24/7 access can help a business avoid one of these lawsuits. At a minimum a business should include an accessibility statement, policy and procedure on its website, stating, in text available to a screen reader, how to contact the company if one has difficulty accessing the website.
What Defenses Are Available To Defend the Lawsuit?
Unfortunately, the cost of hiring an attorney and fighting the lawsuit significantly outweighs the cost of settlement. Additionally, the chances of a successful defense, no matter how aggressive is quite slim, and the risk of having to pay the plaintiffs’ attorneys fee is high.
Some businesses have attempted a strategy of simply defaulting to avoid the expense of filing an answer and payment of attorneys’ fees and settling shortly thereafter. This can be a dangerous tactic and could result in a recorded judgement against the business.
Some businesses have attempted to seek a stay from the Court to bring their site into compliance and then argue there is no longer an issue in controversy. Unfortunately, while this might work in a federal court case, the Unruh Act looks backward. The violation has already occurred and the minimum damages are $4,000. Additionally, the doctrine of mootness only applies to injunctive relief, i.e., where a plaintiff seeks compliance rather than damages.
Removal of the case to Federal Court is not an option absent diversity of citizenship and the amount in controversy is in excess of $75,000.
Success against these lawsuits has been very rare and California Courts continue to issue pro-plaintiff decisions in website accessibility cases.
In Davis v. BMI/BND Travelware Co. summary judgement was upheld against the California retailer for violations of the Unruh Act.
In Thurston v. Midvale Corp. d/b/a Whisper Lounge the Appellate Court affirmed summary judgement against a restaurant on grounds that the website discriminated against the blind under the Unruh Act and ordered the restaurant to conform with WCAG 2.0 AA standards. The Court found that such standards are neither overbroad nor uncertain. The restaurant was also ordered to pay the $4,000 minimum damages plus the plaintiff’s attorney’s fees.
In Martinez v. Kydia, the court held that a company’s website is a “public accommodation” within the meaning of the ADA, regardless of a connection to a physical location.
If Sued, Should I Tender The Claim to My Insurance Carrier?
If you have any form of general liability insurance, where commercial, marine, or otherwise, you should consider advising your carrier of the demand or lawsuit and ask that they defend and indemnify you. Many GL policies, however, exclude “Material Published Prior To Policy Period”, including “Personal and advertising injury” arising out of oral or written publication of material whose first publication took place before the beginning of the policy period.”
How Can I Avoid A Lawsuit?
Here are some tips that may help:
- Retain an accessibility expert to bring your website up to compliance as soon as possible. Some developers may be able to add a plug-in for your website which adds alternative text to new photos and content automatically.
- Set up a 24/7 accessibility telephone line if possible. It may help avoid a lawsuit.
- Include an accessibility, policy and procedures statement, advising the public to contact you if they have any difficulty accessing any portion of your website – which can be read with a screen reader.
- Add closed-captioning to your videos using one of the many services available.
- Check your website for compliance on a regular basis, using one of the many free website accessibility testing applications.
- Document all of your efforts at compliance.
- Regarding public media, whether on your website or on your YouTube channel, providing captions and transcripts is going to be a necessity. Start now.