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California courts continue to be busy venues for lawsuits alleging violations of the Americans with Disabilities Act (“ADA”) for website accessibility claims. These lawsuits have targeted a broad range of industries including retail, food service, hospitality, and just about any business that provides goods or services through a website or mobile application.
Despite numerous COVID-19 related court closures, California courts have continued to see a steady filing of web accessibility claims. Since March 19, 2020, when California issued its state-wide Shelter in Place Order, more than 115 website accessibility lawsuits have been filed in state and federal courts, with a total of over 400 filed year to date. These numbers are just the lawsuits—there are no statistics on the many pre-litigation demand letters sent to targeted businesses. And with the on-going pandemic leading to consumers’ increased reliance on companies’ websites and e-commerce business, it is likely that California will see a further uptick in website accessibility claims in the future.
The ADA provides that “[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodation of any place of public accommodations….”[1] The ADA affords injunctive relief (requiring a business to make its website ADA accessible) as well as attorney’s fees for violations of its provisions.[2] California’s parallel Unruh Civil Rights Act similarly prohibits disability discrimination and provides that a violation of the ADA constitutes a violation of the Unruh Act.[3] Importantly, in addition to the remedies available under the ADA, the Unruh Act allows for statutory damages of $4,000 for each denial of public accommodation or three times the actual damages, whichever is greater.[4]
Typically, in website accessibility lawsuits, a visually impaired Plaintiff will allege that a company’s website is inaccessible and incompatible with screen-reading software such that the individual is denied full and equal access to the company’s website in violation of the ADA and the Unruh Act. In these cases, a Plaintiff will seek statutory damages, injunctive relief, and attorney’s fees both individually and on behalf of a class of persons similarly situated. Plaintiffs have been testing this theory of ADA liability in courts across the country for years, with New York, Florida and California being the most active. While there is a split among the federal circuits as to the applicability of the ADA to web accessibility claims, the Ninth Circuit Court of Appeals in Robles v. Domino’s Pizza, LLC held that the ADA applies to a company’s website and mobile applications, reasoning that the ADA applies to the services of a place of public accommodation and is not limited to services in a place of public accommodation.[5] However, the Ninth Circuit stated that a website or mobile application must have a “nexus” to a physical place of public accommodation to fall under the ADA.[6] California’s Second District Court of Appeal in Thurston v. Midvale Corp. similarly held that websites with a nexus to a physical place of public accommodation are subject to the ADA.[7]
While Robles and Thurston strongly suggest California courts will continue to apply the ADA to websites and mobile applications when connected to a physical space, there is no clear guidance as to how companies can achieve ADA website compliance. Courts have suggested the equitable remedy of compliance with the Web Content Accessibility Guidelines (WCAG) 2.1—the highly regarded industry recommendations for website accessibility developed by the World Wide Web Consortium (W3C).[8] Federal regulations have yet to be promulgated on web accessibility and the Department of Justice has not issued any guidance.
However, California has begun to take steps toward imposing website accessibility standards. On February 6, 2020, California Assembly Member Ed Chau introduced AB 2123, which would provide for a presumption of equal accommodation under the Unruh Act where a website complies with the W3C’s standards for website accessibility. This bill is currently pending in the Assembly Committee on Judiciary, but the hearing was canceled at the author’s request on May 11, 2020, and no hearing is scheduled.[9]
Despite the lack of clear guidance, it is imperative that companies take steps to understand the WCAG 2.1 standard and adequately address website accessibility issues. Now more than ever, with companies relying on substantial e-commerce business during the COVID-19 crisis, a company failing to address its website accessibility will become a target for litigation. Companies are advised to work in cross-functional teams, consulting web accessibility experts and user interface (“UI”) /user experience (“UX”) designers, to evaluate how content is created and displayed on their websites and mobile applications so that users are able to interact with online services in compliance with the relevant guidelines.
Rogers Joseph O’Donnell specializes in working with its corporate clients on retail industry trade regulations that impact their business and has formed a taskforce dedicated to steering businesses during this unprecedented time. For compliance advice or defense of claims, attorneys Renée D. Wasserman, Emily A. Wieser, Cassidy Kim, Josh Deitz, and Alecia E. Cotton are available to assist.
Disclaimer: The materials provided are offered for informational and educational purposes only and are not offered as and do not constitute legal advice or legal opinions. The transmission or receipt of information or communications with Rogers Joseph O’Donnell does not constitute or create an attorney-client relationship between us and any recipient.
[1] 42 U.S.C. § 12182(a).
[2] 42 U.S.C. § 12188(a)(1)-(2); 42 U.S.C. § 12205.
[3] California Civil Code § 51(b), (f).
[4] California Civil Code § 52(a).
[5] Compare Ford v. Schering-Plough Corp., 145 F.3d 601, 614 (3rd Cir. 1998) (holding a “public accommodation” under the ADA does not “refer to non-physical access”); with Carparts Distribution Ctr. v. Automotive Wholesaler’s Assoc. of New England, Inc., 37 F.3d 12 (1st Cir. 1994); Doe v. Mutual of Omaha Ins. Co., 179 F. 3d 557 (7th Cir. 1999) (stating a place of public accommodation need not be a physical space); Robles v. Domino’s Pizza, LLC, 913 F.3d 898 (9th Cir. 2019), cert. denied, 140 S. Ct. 122 (2019).
[6] Robles, 913 F.3d 905.
[7] Thurston v. Midvale Corp., 39 Cal. App. 5th 634 (2019).
[8] Id.; Robles, 913 F.3d at 907.
[9] The California Attorney General’s Office (OAG) has also incorporated the W3C’s standards into its proposed regulations for online notices under the California Consumer Privacy Act (CCPA). See OAG Regulations, Art. 1, §§ 999.305-999.308. Businesses posting required privacy policies and notices regarding data collection, sale opt-outs, and financial incentives “shall follow generally recognized industry standards, such as the [WCAG], version 2.1” in order to “[b]e reasonably accessible to consumers with disabilities.” Id.
