Business Law Journal

California in particular has been a hotbed of such litigation with not only the application of the Americans with Disabilities Act (“ADA”), but also California’s Unruh Civil Rights Act (Cal. Civ. Code § 51 et seq.).  Under California’s Unruh Civil Rights Act (“Unruh”), usually the plaintiff must submit evidence showing intentional discrimination by the defendant-business rather than evidence of disparate impact of a facially neutral policy.  Such evidence of intentional discrimination requires a showing of willful, affirmative misconduct.  However, the Ninth Circuit has ruled that no showing of intentional discrimination is required under Unruh where the claim is premised upon a violation of the ADA.

Because Unruh may impose liability for even unintentional violations of the ADA, liability may be imposed if screen-reading software cannot access a website due to errors in coding or the oversight of an employee.  Such issues may be as innocuous as irregular structure of the website, unlabeled or mislabeled buttons or links, incorrect coding, or the failure to include alternative text where graphical images appear.  The inability to provide full access vis-à-vis screen-reading software may impair a disabled individual’s “full enjoyment” of the goods or services that are provided by the website.  This may give rise to a claim under the ADA which in turn may impose liability under Unruh if such a violation is proven.

If an impaired individual prevails on their Unruh claim, as damages they may obtain actual damages according to proof or statutory damages in the amount of $4,000.  A recent California decision limited the statutory damages arising from a website found to be violation of Unruh and the ADA to $4,000 per individual rather than $4,000 per each attempt by an individual to access the offending website.  The Court also issued an injunction requiring the offending website be modified so that it would be readily accessible and usable by visually-impaired individuals.

Some businesses have successfully challenged these lawsuits on due process grounds due to the fact that the Department of Justice has yet to issue minimum web accessibility standards for the benefit of the visually-impaired.  For example, in Robles v. Dominos Pizza LLC, the District Court granted a Motion to Dismiss filed by Dominos Pizza on such due process grounds.  However, the tide has turned against this argument with the recent consensus building that the lack of specific guidelines from the Department of Justice does not excuse businesses from complying with the general mandates of the ADA and Unruh to provide “full and equal” enjoyment of the goods and services offered through the businesses’ websites.  Arguably such “full and equal enjoyment” is not possible where “full and equal” access is not provided.  Recent Court decisions have denied motions to dismiss on due process grounds by reasoning that potential liability under the ADA and Unruh is not limited to only the situations where the Department of Justice has offered guidance.  Thus, it appears unlikely that such a defense will be successful in the future.  This is particularly true because the Department of Justice recently filed a Notice of Withdrawal indicating that the Department would not be issuing specific requirements for website accessibility in the near future.  Rather, the Department of Justice has left the issue to the Courts to decide.

Recent litigation demonstrates that websites connected to brick and mortar stores or other physical locations will be subject to the coverage of the ADA and Unruh.  This position has been supported by the Department of Justice since the early 2000s.  However, while the Department of Justice has not yet adopted any standards for website accessibility to the visually-impaired, and appears unlikely to do so in the near-future, business owners and executives should ensure that their websites comply with the Web Content Accessibility Guidelines 2.0 and AAA success criteria.  More information on these guidelines can be found here:

https://www.w3.org/WAI/intro/wcag and https://www.w3.org/WAI/WCAG20/quickref/