Web accessibility: The new wave of litigation

Website accessibility claims have been around for some time. However, they have been rapidly trending upward following the rise and fall of Proposition 65 cases and pre-litigation demand letters impacting countless companies doing business in California and throughout the country.

The most recent iteration of accessibility cases combines claims under both the federal Americans with Disabilities Act and California's Unruh Civil Rights Act. These claims can be expensive to litigate and resolve, both in terms of addressing any noncompliant aspect of a company's website and covering penalties and attorney fees that might be assessed.

While defenses exist for these claims, a business' most effective means to avoid such a claim is to review their website for accessibility compliance and work to remediate any noncompliant findings before a demand is served or a lawsuit is filed.

The ADA

The ADA, passed in 1990, prohibits discrimination based upon a person's actual or perceived disabilities. Accessibility cases traditionally concerned the physical design of public accommodations (e.g., the requirement of ramps to gain access to physical stores, accessible bathrooms, etc.). In 2010 the U.S. Department of Justice issued its ADA Standards for Accessible Design which required electronic and information technology to be accessible to all persons, including those with vision and hearing impairments.

While websites fall within the ambit of the 2021 version of the ADA Standards for Accessible Design, it is important to note there is no set standard by which to gauge whether a website is compliant. Instead, the ADA requires "reasonable accessibility," with no definition of how or when that is achieved. In its place, a de facto standard that most practitioners and courts apply is the Web Content Accessibility Guidelines (aka "WCAG") 2.0 Level AA, which are updated routinely.

The 9th U.S. Circuit Court of Appeals has held that for the ADA to apply to a website, there must be sufficient nexus between the website and a physical place where the sought-after goods or services might be obtained. See, e.g., Robles v. Domino's Pizza, LLC, 913 F.3d 898 (9th Cir. 2019) and Earll v. Ebay, Inc., 599 Fed. App'x. 695, 696 (9th Cir. 2015).

Finally, while the ADA provides only equitable relief such as injunctions rather than damages, attorney fees can be recovered by a prevailing plaintiff.

The Unruh Civil Rights Act

California's Unruh Act was enacted in 1959 and states that, "All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, or sexual orientation are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever."

The breadth of the Unruh Act arguably extends potential claims to e-commerce without the required connection to brick and mortar that the ADA requires. Further, unlike the ADA, a violation of the Unruh Act can result in statutory damages (three times the actual damages with a minimum of $4,000) and penalties as well as attorney fees.

The Unruh Act also provides that a violation of the ADA is also a violation of the Unruh Act -- but when a claim under the Unruh Act is not premised on an ADA violation (i.e., a website that has no nexus to a physical place of public accommodation), the plaintiff must meet the significantly higher bar of proving intentional discrimination.

Defenses

Notwithstanding the broad reach of the ADA and Unruh Act, there are potential defenses to website accessibility claims asserted under each statute. First, as noted in Robles and Earll, there must be a nexus between the website in question and a physical establishment where the goods and services could be obtained; for cases brought in the 9th Circuit, pure e-commerce companies with no brick-and-presence are not subject to the ADA. Moreover, the ADA applies to companies with at least 15 full-time employees that operate 20 or more weeks a year; the federal law will not apply to the extent a company does not meet these rubrics.

Challenges regarding standing are viable for accessibility claims under both the ADA and Unruh Acts. For example, a plaintiff asserting an accessibility claim under either the ADA or Unruh Act must establish that they were actually damaged. Further, recent case law has held that for a claimant to have a viable claim under the Unruh Act, that person must have a bona fide intent to use the services being offered by the website. See Thurston v. Omni Hotels Mgmt. Corp., 2021 DJDAR 10106 (Cal Ct. App. Sept. 23, 2021). This decision calls into question whether so-called activist plaintiffs have standing to bring accessibility claims, as their interest in bringing a lawsuit is based on accessibility claims, and not specifically on their desire to use the goods and services described on the website.

There are additional factual and legal defenses available to companies litigating website accessibility claims, including the existence of reasonable accommodations that comply with guidance issued by the DOJ and World Wide Web Consortium (i.e., ADA Standards for Accessible Design and WCAG), as well as evidence regarding a company's efforts to make its website accessible to all users, which can be used to undercut allegations of intentional discrimination.

As a layered approach to ensuring the accessibility of one's website, many companies have considered implementing a technological solution, whether in the form of an overlay, toolbar, widget or another online tool. Despite using such tools, some companies find their website remains a target of activist plaintiffs who may assert that website's underlying source code is not accessible. The Unruh Act does not require modifying the website's underlying code to achieve accessibility. This affords a company with flexibility in complying with the statute's general requirements of nondiscrimination and effective communication.

In fact, the Unruh Act expressly states that it does not require any changes to be made to the website so long as one can implement the means to make the website generally accessible to all: "Nothing in this section shall be construed to require any construction, alteration, repair, structural or otherwise, or modification of any sort whatsoever, beyond that ... is otherwise required by other provisions of law." Unruh Act Section 51(d).

Subject to a company's proper implementation of such tools, a plaintiff claiming the failure to revise the underlying website source code is not pursuing a valid claim under the Unruh Act.

Remediation

While defenses exist to accessibility claims under the ADA and Unruh Act, litigation can prove costly. A company's interests are generally best served by taking affirmative steps to have its website reviewed and assessed by a website accessibility consultant to ensure that it complies with WCAG 2.0 or 2.1 (and now potentially, WCAG 2.2) using automated, manual and assistive technology tests. Each of these types of tests is recommended to ensure a complete audit of the website's accessibility. By documenting the website's compliance with operative accessibility guidelines, the company both creates an additional defense to any claims under the ADA and the Unruh Act and potentially thwarts any claims being asserted in the first place. 