By: Jonathan A. Cass and Anthony H. Chwastyk
Now may be the time to audit your website to ensure that it is accessible to blind or visually impaired visitors. A recent case in California, coupled with ADA requirements, makes it easier for unwitting businesses with an online presence to be dragged into a California state court even if they have no California offices or employees. Companies could face significant monetary damages, not to mention serious damages to their reputation and loss of customers.
In Thurston v. Fairfield Collectibles of Georgia, LLC, the plaintiff, a blind California resident, sued a Georgia company for failing to provide her full and equal access to the company website in violation of California disability discrimination law.
UCRA is a relatively simple statute that has huge implications for businesses with websites. Its directive is as follows:
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, sexual orientation, citizenship, primary language, or immigration status are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.
UCRA further states that any violation of the Americans with Disabilities Act (ADA) is a violation of UCRA. Therefore, the Ninth Circuit’s acknowledgment that a website can be a place of public accommodation in Robles v. Domino’s Pizza, LLC, has serious implications for out-of-state defendants when combined with the Thurston court’s holding. UCRA allows a plaintiff to recover his or her actual damages in an amount no less than $4,000, which can be tripled in certain instances. Even worse, the defendant is required to pay the plaintiff’s attorney fees. Defending a website accessibility claim becomes a costly proposition, especially after a business or individual accounts for an attorney’s cost along with remedies. These cases are on the rise because attorneys see these claims as a lucrative cottage industry; the attorneys and potential plaintiffs actively seek out non-compliant websites. For example, the plaintiff in Thurston self-identified as one of these “testers.”
The best way to handle these claims is to avoid them altogether. Many web developers offer compliance audits and accessibility solutions that allow blind and visually impaired users to navigate a company’s website successfully. While legislatures and government agencies have been painfully silent on the measures a company can employ to insulate it from liability, the “gold standard” for web accessibility is generally considered the World Wide Web Consortium’s Web Content Accessibility Guidelines 2.0 (WCAG).
If you are the recipient of a website accessibility lawsuit or a letter threatening such a lawsuit, even one from out of state (like California), do not ignore it. Contact an attorney immediately to protect your rights. Despite the considerable obstacles facing a defendant hit with such a lawsuit, counsel can help you navigate and successfully resolve these types of claims.
If you have any questions, Cohen Seglias attorneys have experience with web accessibility claims and understand the complexities of this emerging legal landscape.