Did your company receive an ADA demand letter seeking monetary damages and attorney fees? Our technology law firm can help you understand this important issue and help you settle your case. Call us at (877) 276-5084.
As if small business owners needed something else to worry about, the ADA act is being used to force some website operators across the United States to bring their websites into legal compliance with complex “accessibility” standards that may force companies to pay for experienced technology and legal consultants to make needed changes to their commercial and retail websites to ensure that their internet portal is accessible to all applicable handicapped persons as defined by ADA, in the same manner as is done “offline.”
While I must point out that I am all for businesses having to provide reasonable access to places of public accommodation, the issue that appears to be trending is whether or not millions of websites (many being startup companies struggling to get their businesses launched in the first place, sometimes out of their garage or living room), will have to factor in paying expensive consultation and technology fees as part of traditional startup costs which may be out of the range of many startups, and may therefore stifle business growth.
The net result of over-enforcement of the ADA could possibly be that that the rights of the handicapped and those with disabilities are well protected, while the rights of small business owners to launch and operate their business gets severely curtailed and may prevent businesses from being able to open their doors, or keep them open if facing a federal court lawsuit. Regardless, there are public policy issues that need to be evaluated, and if you require legal counsel for ADA website compliance issues, we can help.
If you received a legal demand letter, call us to discuss your legal rights. We can help you explore potential defenses, and protect your interests if you are facing a monetary legal demand. We offer a free initial consultation and can potentially accept federal litigation cases nationwide subject to local rules of admission.
Business owners should keep in mind that according to the U.S. Department of Justice, all websites must comply with the ADA, and it is not clear how President Trump will influence this previous position. So this is a legal issue that is on the radar in 2017 and beyond. This blog talks about some of the basics it would be important to understand.
What is the Americans with Disabilities Act (“ADA”)?
According to wikipedia:
“The Americans with Disabilities Act of 1990 (42 U.S.C. § 12101) is a US labor law that prohibits unjustified discrimination based on disability. It affords similar protections against discrimination to Americans with disabilities as the Civil Rights Act of 1964, which made discrimination based on race, religion, sex, national origin, and other characteristics illegal. In addition, unlike the Civil Rights Act, the ADA also requires covered employers to provide reasonable accommodations to employees with disabilities, and imposes accessibility requirements on public accommodations.”
What is a place of public accommodation?
According to ADA.gov
“Title III prohibits discrimination on the basis of disability in the activities of places of public accommodations (businesses that are generally open to the public and that fall into one of 12 categories listed in the ADA, such as restaurants, movie theaters, schools, day care facilities, recreation facilities, and doctors' offices) and requires newly constructed or altered places of public accommodation—as well as commercial facilities (privately owned, nonresidential facilities such as factories, warehouses, or office buildings)—to comply with the ADA Standards.”
Just what a “public accommodation” is can be the subject of hearty debate. The DOJ is expected to issue web accessibility standards in 2018.
The Department of Justice gets involved
The United States Department of Justice (in addition to private attorneys) can seek to enforce website accessibility matters. Here is a snippet from one press release I found regarding DOJ ADA settlement with Peapod grocery:
“Under the agreement, Peapod is required to adopt measures to ensure that users with disabilities are able to fully and equally enjoy the various goods, services, facilities and accommodations provided through www.peapod.com including:
ensure that www.peapod.com [external link] and its mobile applications conform to, at minimum, the Web Content Accessibility Guidelines 2.0 Level AA Success Criteria (WCAG 2.0 AA), except for certain third party content;
designate an employee as web accessibility coordinator for www.peapod.com, who will report directly to a Peapod, LLC executive;
retain an independent website accessibility consultant, who will annually evaluate the accessibility of the website and its mobile applications; adopt a formal web accessibility policy;
provide a notice on www.peapod.com soliciting feedback from visitors on how website accessibility can be improved;
provide automated accessibility testing and accessibility testing by individuals with a variety of disabilities of www.peapod.com and its mobile applications; provide mandatory annual training on website accessibility for Peapod's website content personnel.
What might a typical demand letter say?
A demand letter may seek an expedited settlement and may include:
- A demand for monetary damages;
- A demand for attorney fees;
- A demand for express compliance with the ADA and W3C (Worldwide Web Consortium) WCAG 2.0 standards which have been endorsed by the Department of Justice;
- A demand that your company designate a team of one or more individuals to manage web accessibility compliance, testing and detection, repairing and implementation
- Creating and maintaining adequate reporting for a Section 508 and WCAG 2.0 compliant website within a stated time period.
- Draft, create, adopt and maintain a website accessibility policy consistent with current accepted standards.
- Conduct ongoing audits to ensure compliance.
- Implement technology and employee training measures to ensure ongoing compliance
- Lawsuit or legal demand may request that the Court order the website be taken offline until compliance with ADA is complete
- Other requests depending on the nature of the website including potentially seeking an injunction.
A legal demand letter can be intimidating, but we can help you explore your legal rights and defenses. In some cases it may be a legal shakedown for money, in other cases, litigation may be the goal of the Plaintiff. We can help you make that assessment.
What types of handicapped people may come visit and access your website?
Some types of handicaps you may see are
- Individuals with disabilities (broadly defined)
- Blind or have low vision
- Individuals who are deaf or hard of hearing
- Individuals who have physical disabilities affecting manual dexterity
United States Access Board accessibility standards apply to electronic and information technology procured by the federal government (Section 508 Standards).
A good overview of the standards under Section 508 can be found here.
Do website accessibility standards apply to all commercial websites?
This is an ongoing question and not easy to answer.
9th Circuit requirement of “retailers with a physical space”
In one case from the Northern District in California the court addressed what a “public accommodation” is:
“Here, Netflix's streaming video library is a website where consumers can access videos with an internet connection. The Netflix website is not “an actual physical place” and therefore, under Ninth Circuit law, is not a place of public accommodation. Because the website is not a place of public accommodation, the ADA does not apply to access to Netflix's streaming library. Thus, Cullen's claim that Netflix failed to provide full and equal access under the DPA and the Unruh Act cannot rest on Netflix's alleged failure to comply with the ADA.
This conclusion, however, does not necessarily render Cullen's DPA and Unruh Act claims meritless. Cullen may be able to pursue his discrimination claims if they are asserted as independent claims separate from an ADA violation because both the Unruh Act and the DPA apply to websites “as a kind of business establishment and an accommodation, advantage, facility, and privilege of a place of public accommodation, respectively. No nexus to [a] physical [place] need be shown.” See Nat'l Fed'n of the Blind v. Target Corp., 582 F.Supp.2d 1185, 1196 (N.D.Cal.2007).”
See Cullen v. Netflix, Inc., 880 F. Supp. 2d 1017, 1024 (N.D. Cal. 2012). The Unruh Act requires intentional discrimination as noted:
“A violation of the Unruh Act may be maintained independent of an ADA claim only where a plaintiff pleads “intentional discrimination in public accommodations in violation of the terms of the Act.” Munson v. Del Taco, Inc., 46 Cal.4th 661, 668, 94 Cal.Rptr.3d 685, 208 P.3d 623 (2009) (quoting Harris v. Capital Growth Investors XIV, 52 Cal.3d 1142, 1175, 278 Cal.Rptr. 614, 805 P.2d 873 (1991)).
To prove intentional discrimination there must be allegations of “willful, affirmative misconduct,” and the plaintiff must allege more than the disparate impact of a facially neutral policy on a particular group. Koebke v. Bernardo Heights Country Club, 36 Cal.4th 824, 854, 31 Cal.Rptr.3d 565, 115 P.3d 1212 (2005); Young, 790 F.Supp.2d at 1116.
Thus, to sufficiently state a cause of action under the Unruh Act, Cullen's claim cannot be based solely on the disparate impact of Netflix's policies on hearing-impaired individuals but must be grounded in allegations of intentional discrimination. See id. Here, Cullen alleges that Netflix did not caption a meaningful amount of its streaming library at the rate consumers expected and its streaming library is not accessible to hearing-impaired individuals because only a small portion of it is subtitled. These allegations describe a policy with a disparate impact on hearing-impaired individuals, but do not describe willful, affirmative misconduct.
The Disabled Persons Act
This was also discussed in the Netflix case:
“The DPA provides that individuals with disabilities shall be entitled to full and equal access, as other members of the general public, to accommodations, advantages, facilities, places of public accommodation, amusement, or resort, and other places to which the general public is invited. See Cal. Civ. Code § 54.1(a)(1). Full and equal access' is defined by section 54.1 to mean access that complies with the regulations developed under the federal ADA or under state statutes, if the latter imposes a higher standard.” Cal. Civ. Code § 54.1(a)(3); Urhausen v. Longs Drug Stores Cal., Inc., 155 Cal.App.4th 254, 263, 65 Cal.Rptr.3d 838 (Cal.App.2007). Thus, an independent DPA claim requires a showing that accessibility regulations promulgated under California law exceed those set by the ADA. Earll (citing Cal. Civ. Code § 54.1(a)(3) and Urhausen, 155 Cal.App.4th at 263, 65 Cal.Rptr.3d 838). Cullen, however, has not pointed to any relevant standards established by California law that exceed those set by the ADA. Thus, Cullen has failed to plead facts sufficient to allege that Netflix has failed to provide full and equal access as defined by the DPA. Netflix's motion to dismiss Cullen's DPA claim therefore is GRANTED with leave to amend.”
Cullen v. Netflix, Inc., 880 F. Supp. 2d 1017, 1025 (N.D. Cal. 2012).
The Scribd Case – the sparkplug for ADA website litigation?
This case causes some concern for business owners as it held that having just an internet website could call into play application of the ADA. The court first discussed the rule in the 9th circuit:
“Several district courts bound to follow the precedent of the Ninth Circuit have concluded that Title III does not apply to various internet-based retailers or service providers. See, e.g., Jancik v. Redbox Automated Retail, LLC, No. SACV 13–1387–DOC (RNBx) (C.D.Cal. May 14, 2014) (holding a website was not a place of public accommodation because it was not a physical place and there was not a sufficient nexus between the website and physical kiosks); Cullen v. Netflix, Inc., 880 F.Supp.2d 1017, 1023–24 (N.D.Cal.2012) (holding websites are not places of public accommodation because they are not physical places); Ouellette v. Viacom, No. CV 10–133–M–DWM–JCL, (D.Mont. Mar. 31, 2011) (holding a website by itself is not a physical place and the plaintiff did not allege a sufficient connection between the website and a physical structure); Young v. Facebook, Inc., 790 F.Supp.2d 1110, 1114–16 (N.D.Cal.2011) (explaining that a website is not a physical structure and plaintiff had not alleged a sufficient nexus to a physical place of public accommodation); Earll v. eBay, Inc., No. 5:11–cv–00262–JF (HRL), (N.D.Cal. Sept. 7, 2011) (noting that places of public accommodation are limited to physical places); see also National Fed'n of the Blind v. Target Corp., 452 F.Supp.2d 946, 954 (N.D.Cal.2006) (holding plaintiffs had alleged sufficient facts to state a claim because the website was heavily integrated with brick-and-mortar stores and operated as a gateway to the stores); Access Now, Inc. v. Southwest Airlines, Co., 227 F.Supp.2d 1312, 1319–21 (S.D.Fla.2002) (rejecting the application of Title III to a website because it was not a physical location nor a means of accessing a concrete space).”
Nat'l Fed'n of the Blind v. Scribd Inc., 97 F. Supp. 3d 565, 569–70 (D. Vt. 2015). The court concluded by noting that:
“Taking into account all of the relevant background information explored above, the Court finds Judge Ponsor's reasoning in Netflix persuasive. The Internet is central to every aspect of the “economic and social mainstream of American life.” PGA Tour, 532 U.S. at 675, 121 S.Ct. 1879. In such a society “excluding businesses that sell services through the Internet from the ADA would ‘run afoul of the purposes of the ADA and would severely frustrate Congress's intent that individuals with disabilities fully enjoy the goods, services, privileges, and advantages available indiscriminately to other members of the general public.” Netflix, 869 F.Supp.2d at 200 (quoting Carparts, 37 F.3d at 20).
The Court must therefore determine whether the services Scribd offers properly fall within any of the general categories of public accommodations listed in the statute. Construing the list of categories liberally, Plaintiffs have persuasively argued that Scribd's services fall within at least one of the following categories: “place of exhibition or entertainment,” a “sales or rental establishment,” a “service establishment,” a “library,” a “gallery,” or a “place of public display or collection.” (citing 42 U.S.C. § 12181(7)).
Therefore, the Court finds that Plaintiffs have sufficiently alleged that Scribd owns, leases, or operates a place of public accommodation. Accordingly, Scribd's motion to dismiss is denied.”
Nat'l Fed'n of the Blind v. Scribd Inc., 97 F. Supp. 3d 565, 575–76 (D. Vt. 2015)
What do WCAG 2.0 standards require?
You can find a WCAG 2.0 checklist here.
Recent Arizona cases filed in District Court
Here are some recent cases I have found online:
- Close v. Western Heritage Furniture Incorporated (3:2017-cv-08008)
- Close v. Sole Sports Incorporated (2:2017-cv-00146)
- Close v. Ping Incorporated (2:2017-cv-00145)
- Close v. Four Peaks Brewing Company Incorporated (2:2017-cv-00144)
One thing I noted in this cases was an allegation that each of the Defendants had a “bricks and mortar” physical location. This might be important as the 9th circuit (which covers California, Hawaii, Montana, Nevada, Utah, Oregon, etc.) caselaw has touched upon this being a potential requirement before going after an online website. See below.
Sample allegations in the Complaint
Using the Federal Online Pacer Search Tool you can look these cases up to see what documents were filed, who the law firm is that filed the case, and access court documents and pleadings. Here are a few of the sample arguments:
Plaintiff has attempted to utilize Defendants Website. Despite several attempts to use and navigate the Website, Plaintiff has been denied the full use and enjoyment of the facilities, goods and services available on the website as a result of access barriers to the site. If the barriers were removed Plaintiff would utilize the Website in the future
The barriers at the Website have caused a denial of Plaintiff's full and equal access multiple times in the past, and currently deter Plaintiff from utilizing Defendant's website and will continue to deter Plaintiff from future use and enjoyment of the website. 20. The access barriers at the Website are numerous. Issues are rated, by W3c, on levels of severity with 100% being the most critical (i.e. having the greatest impact upon those with low or no vision).
Fifty-seven (57) issues of varying severity have been identified, the most notable include, but are not limited to, the following (list of alleged non-compliant items):
- a) IMAGE MISSING ALT ATTRIBUTE4 Incidences. 97% Severity Level Web Content Accessibility Guidelines (WCAG) 2.0, Level A: 1.1.1 Non-text Content All images must have an alt attribute. Not supplying an alt attribute will mean that users who cannot see the image will not understand what the image conveys.
- b) FORM ELEMENT HAS NO LABEL2 Incidence. 91% Severity Level. Web Content Accessibility Guidelines (WCAG) 2.0, Level A: 1.3.2 Meaningful Sequence. Code was found which uses deprecated methods to define colors. This sometimes cannot be overridden or disabled by custom CSS or by turning CSS off.
- c) LINK USES INVALID HYPERTEXT REFERENCE1 Incidences 100% Severity Level Web Content Accessibility Guidelines (WCAG) 2.0 Level A: 4.1.2. Name, Role, Value. This link's href attribute does not conform to RFC1630 which defines the proper construction of URIs. The behavior, in certain scenarios, may not match the intended behavior.
- d) LINK HAS NO TEXT INSIDE11 Incidences 100% Severity Level Web Content Accessibility Guidelines (WCAG) 2.0 Level A: 2.4.4 Link Purpose (In Context)The purpose of each link can be determined from the link text alone or from the link text together with its programmatically determined link context, except where the purpose of the link would be ambiguous to users in general. 2.4.9 Link Purpose (Link Only) A mechanism is available to allow the purpose of each link to be identified from link text alone, except where the purpose of the link would be ambiguous to users in general.
- e) “id” IS BEING USED MORE THAN ONCE58 Incidences 97% Severity Level Web Content Accessibility Guidelines (WCAG) 2.0 Level A 4.1.1 Parsing In content implemented using markup languages, elements have complete start and end tags, elements are nested according to their specifications, elements do not contain duplicate attributes, and any IDs are unique, except where the specifications allow these features.
- f) LINK HAS A ‘TITLE' ATTRIBUTE THAT'S THE SAME INSIDE THE LINK25 Incidences 100% Severity Level Web Content Accessibility Guidelines (WCAG) 2.0 Level A Link Purpose (In Context) The purpose of each link can be determined from the link text alone or from the link text together with its programmatically determined link context, except where the purpose of the link would be ambiguous to users in general.” and; WCAG 2.4.9 which states: “Link Purpose (Link Only) A mechanism is available to allow the purpose of each link to be identified from link text alone, except where the purpose of the link would be ambiguous to users in general.
The complaint goes on to state:
“The deficiencies in Defendant's Website prohibits a customer, utilizing screen reader software, from having the text of the website, and its' images, vocalized. As a result, visually impaired individuals are unable to determine what is on a website, browse the sites, look for store locations, review discount programs and specials and/or make any purchases. If the Website were accessible, Plaintiff could independently use and navigate Defendant's website and would utilize the Website in the future.”
The complaint alleges two causes of action, one for a violation of the Federal ADA and another for an alleged violation of the Arizonans with Disabilities Act:
SUBSTANTIVE VIOLATION (Title III of the ADA, 42 U.S.C. § 12181 et seq.) 25. The allegations contained in the previous paragraphs are incorporated by reference. Section 302(a) of Title III of the ADA, 42 U.S.C. § 12101 et seq., provides:
“No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of goods, services, facilities, privileges, advantages or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” 42 U.S.C. § 12182(a) 27. Defendant's Website is a public place of accommodation within the definition of Title III of the ADA 42 U.S.C. § 12181(7).”
Under Section 302(b)(1) of Title III of the ADA, it is unlawful to discrimination to deny individuals with disabilities the opportunity to participate in, or benefit from, the goods, services, facilities, privileges, advantages or accommodations of an entity. 42 U.S.C. § 12182(b)(1)(A)(i). Under Section 302(b)(1) of Title III of the ADA, it is unlawful discrimination to deny individuals with disabilities the opportunity to participate in, or benefit from, the goods, services, facilities, privileges, advantages or accommodations, which is equal to the opportunities afforded to other individuals. 42 U.S.C. § 12182(b)(1)(A)(ii).
SECOND CAUSE OF ACTION VIOLATION OF THE ARIZONANS WITH DISABILITIES ACT (On behalf of Plaintiff and against all Defendants (A.R.S. §42-1492 et seq.) Plaintiff re-pleads and incorporates by reference, as if fully set forth again herein, all the allegations contained in all prior paragraphs of this Complaint. Defendants own, operate, lease or lease to others brick and mortar places of public accommodation, more specifically hotel and/or extended stay lodging facilities. As part of Defendant's business model it utilizes a Website to attract customers, promote the business, provide rental information and as a portal to check rates, availability and to make reservations. As such, Defendants are required to ensure that persons with disabilities, in this specific case visual disabilities, are not discriminated against and that they are able to utilize the public accommodations of Defendant. This requirement extends to Defendant's Website. Defendant has failed meet these obligations in this case in which they were required to maintain compliance under the Arizonans with Disabilities Act. Violations of the federal ADA are per se violations of the AzDA.”
What is a “public accommodation” under A.R.S. 42-1492?
Under the definitions section of the law it is noted:
“Public accommodation” includes any:
(a) Inn, hotel, motel or other place of lodging, except for an establishment located within a building that contains not more than five rooms for rent or hire and that is actually occupied by the proprietor of the establishment as the residence of the proprietor.”
(b) Restaurant, bar or other establishment serving food or drink.
(c) Motion picture house, theater, concert hall, stadium or other place of exhibition or entertainment.
(d) Auditorium, convention center, lecture hall or other place of public gathering.
(e) Bakery, grocery store, clothing store, hardware store, shopping center or other sales or retail establishment.
(f) Laundromat, dry cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a health care provider, hospital or other service establishment.
(g) Terminal, depot or other station used for specified public transportation.
(h) Museum, library, gallery or other place of public display or collection.
(i) Park, zoo, amusement park or other place of recreation.
(j) Nursery, elementary, secondary, undergraduate or postgraduate private school or other place of education.
(k) Day care center, senior citizen center, homeless shelter, food bank, adoption agency or other social service center establishment.
(l) Gymnasium, health spa, bowling alley, golf course or other place of exercise or recreation.
Missing from this list is any mention of “internet website.”
Remedies sought in the complaint
Here is what the Plaintiff is seeking in one case I reviewed:
- Declaratory Judgment that at the commencement of this action Defendant was in violation of the specific requirements of the ADA described above, and the relevant implementing regulations of the ADA, in that Defendant took no action to ensure that its Website is fully accessible to, and independently usable by, disabled individuals;
- Irrespective of the Defendant's “voluntary cessation” of the ADA violation, if applicable, a permanent injunction pursuant to 42 U.S.C. § 12188(a)(2) and 28 CFR § 36.504(a) which directs Defendant to take all steps necessary to bring its Website into full compliance with the requirements set forth in the ADA, and its implementing regulations, and WCAG 2.0 AA guidelines so that the Websites are fully accessible to, and independently usable by, disabled individuals and which directs that the Court shall retain jurisdiction for a period after Defendant certifies that its Website is fully in compliance with the relevant requirements of the ADA, and compliant with WCAG 2.0 AA guidelines to ensure that Defendant has adopted and is following an institutional policy that will in fact cause Defendant to remain fully in compliance with the law;
- Irrespective of the Defendant's “voluntary cessation” of the ADA violation, if applicable, payment of costs of suit;
- Irrespective of the Defendant's “voluntary cessation” of the ADA violation, if applicable, payment of attorneys' fees pursuant to 42 U.S.C. §12205, 28 CFR § 36.505 and other principles of law and equity and in compliance with the “prevailing party” and “material alteration” of the parties' relationship doctrines in an amount of not less than $4,500.00; and
- An order that Defendant's Website, a place of public accommodation, be taken offline until Defendant it has fully complied with the ADA;
- A Declaratory Judgment that at the commencement of this action the Defendant was in violation of the specific requirements of AzDA; and
- Irrespective of the Defendants “voluntary cessation” of the ADA violation, if applicable, a permanent injunction pursuant to AzDA which directs Defendant to take all steps necessary to bring its website into compliance with the requirements set forth in AzDA, and its implementing regulations, so that the Website is fully accessible to and independently usable by, disabled individuals and which directs that the Court shall retain jurisdiction for a period after Defendant certifies that its Website is fully in compliance with the relevant requirements of AzDA, and compliant with WCAG 2.0 AA guidelines to ensure that Defendant has adopted and is following an institutional policy that will in fact cause Defendant to remain fully in compliance with the law;
- For damages in an amount of not less than $10,000.00 for a violation of AzDA based upon this being a “second violation” by Defendant.
What are the Section 508 website accessibility requirements for government websites?
According to the U.S. Department of Education Civil Rights website:
“The U.S. Department of Education is committed to making its electronic and information technologies accessible to individuals with disabilities by meeting or exceeding the requirements of Section 508 of the Rehabilitation Act (29 U.S.C. 794d), as amended in 1998. Section 508 is a federal law that requires agencies to provide individuals with disabilities equal access to electronic information and data comparable to those who do not have disabilities unless an undue burden would be imposed on the agency. Section 508 Standards are the technical requirements and criteria that are used to measure conformance within this law.”
Is this legal extortion?
We have talk about legal extortion on other blogs. In most cases, as long as their is a genuine and good faith belief that the American with Disabilities Act has been violated, the attorney representing the handicapped individual may have good faith grounds to file a lawsuit or pursue a legal demand letter. We can evaluate the letter and the allegations being made and evaluate the amount of damages being sought.
Honestly, what does it take to comply? What are the costs?
So all this begs the question, just what does it take to bring your website into compliance with ADA requirements, assuming the law applies to your website? To find out the answer to this question, you probably need to seek out a website accessibility consultant. Given the lengthy list of guidelines, best practices, and requirements, one can only wonder if full 100% compliance is even possible, and you can expect to pay a grip to get a qualified expert in both the law and the technology to help your business.
- Section 508 Compliance Guidelines
- W3C Accessibility
- U.S. Department of Justice on Web Accessibility ADA
- U.S. Department of Education Office of Civil Rights Checklist for Website Accessibility
- H&R Block ADA settlement and consent decree ($90,000)
- Report: The Abuse of ADA by serial Plaintiffs
- AccessiBE software tool
Law Firms you may receive a letter from or a federal court lawsuit
There is believed to be over 2,000 web accessibility cases filed in Federal Court (many in California and New York). Some law firms known to be seeking recoveries in this area may include:
California AB 1757 May Lead to New ADA Web Accessibility Lawsuits
According to the Bureau of Internet Accessibility:
"The law could profoundly change the legal landscape. By requiring conformance with WCAG 2.1, the bill would establish firm technical requirements for website accessibility — but it would also allow plaintiffs to sue third-party developers that create noncompliant apps and websites."
Violations may also be pursued under the California Unruh Act. According to the California Department of Fair Employment and Housing:
"The Unruh Civil Rights Act provides protection from discrimination by all business establishments in California, including housing and public accommodations. The term “business establishments” may include governmental and public entities as well."
"This bill would specify provide that statutory damages based upon the inaccessibility of an internet website under these provisions shall only be recovered against an entity, as defined, if the internet website fails to provide equally effective communication or facilitate full and equal enjoyment of the entity's goods and services to all members of the public.
The bill would require, in order for a plaintiff to be entitled to statutory damages for internet website inaccessibility, the plaintiff to prove either that they the plaintiff personally encountered a specific barrier that caused them the plaintiff to experience a difference in their the plaintiff's access to, or use of, the internet website as compared to other users, as specified, or that they were the plaintiff was deterred from accessing all or part of the internet website or the content of the internet website because of the internet website's failure to provide equally effective communication or to facilitate full and equal enjoyment of the entity's goods and services offered to the public.
The bill would specify provide that an entity's internet website is presumed to provide equally effective communication and to facilitate full and equal enjoyment of the entity's goods and services to all members of the public for the purpose of determining whether an award of statutory damages is warranted, as specified, if the internet website, taking into account the variety of conforming implementations that may be used to meet the internet website-related accessibility standard, conforms to an internet website-related accessibility standard, as defined. the internet website has a certain certification by a professional reviewer, as defined, that, among other things, the internet website is designed and intended to conform to the internet website-related accessibility standard, as defined.
This bill would make it unlawful for any a resource service provider, as defined, in exchange for remuneration, to intentionally, negligently, recklessly, or knowingly construct, license, distribute, or maintain for online use, use an internet website that fails to conform to the internet website-related accessibility standard or provide equally effective communication or fails to facilitate full and equal enjoyment of the entity's goods and services to all members of the public, including any member of the public who is a person with a disability.
The bill would also make it unlawful for a resource provider to intentionally, negligently, knowingly, or recklessly make a certain false representation that an internet website conforms to the internet website-related accessibility standard. representations, including that the resource provider is a professional reviewer or otherwise qualified to assess the accessibility of an internet website.
The bill would authorize a civil action by a person who is unable to obtain equally effective communication or full and equal enjoyment of an internet website, the content of an internet website, or goods and services offered to the public on an internet website, as a result of that violation, with remedies as prescribed.
The bill would further authorize a civil action by a person or entity that pays, compensates, or contracts with a resource service provider to construct, license, distribute, or maintain an internet website for the purpose of providing equally effective communication or facilitating full and equal enjoyment of the person or entity's goods and services to all members of the public, including any member of the public who is a person with a disability, with remedies as prescribed.
The bill would also authorize the Attorney General General, the Civil Rights Department, or a district attorney, county counsel, or city attorney to bring an action to obtain injunctive or declaratory relief and attorney's fees and costs.
The bill would provide that a provision within a contract between a person or entity and a resource service provider that seeks to waive liability under these provisions, or otherwise shift liability to a person or entity that pays, compensates, or contracts with the resource provider, as provided, is void as a matter of public policy and subject to specified provisions of the Ralph Civil Rights Act of 1976 relating to waiver of rights."
This is not yet law, but now is a good time for business owners in California to start planning.
Call to speak with an ADA website compliance lawyer
Our firm handles federal court litigation and we can help you seek to settle a case (ex. enforcement action) brought by the Department of Justice or deal with other cases which may involve websites, gift cards (cards alleged not to be in Braille), coupons, receipts, store signage, advertising circulars etc. We can also help with WCAG 2.0 compliance, ADA website consultancy, audits and drafting accessibility policies. We have offices in California (San Francisco, San Diego, Santa Monica, and Newport Beach) and Arizona (Phoenix) and handle federal cases nationwide subject to local rules of admission.
Call us at (877) 276-5084 for a free initial consultation. We can help you negotiate a confidential settlement and defend your business against claims of violation of federal ADA laws. This is an important legal issue that has to taken serious to defend your company against large damage awards.
Call us for more information on pricing and availability. We can help real estate brokers, online retailers, stockbrokers and financial organizations, insurance professionals, software and technology companies, healthcare, media, and gaming companies, and other online businesses.