Is your website accessible?

Fri, 03/25/22

Is your website accessible to visually impaired users?

If not, you will probably be sued soon.

With the dramatic increase in consumers shopping for items using e-commerce, an increasing number of businesses are facing lawsuits alleging that their websites are not accessible to those with visual impairments.  In California, these website accessibility claims are based on alleged violations of the Americans with Disabilities Act (ADA) and the Unruh Act (a California statute), which are intended to prevent discrimination by ensuring accessibility of goods and services to all individuals by places of public accommodation.  Typical allegations are that blind and visually impaired people, who access the internet using screen reading software called screen readers (which vocalize visual information on websites), are prevented from doing so when websites are not compatible with the screen readers.  The most common complaint is the website in question uses insufficient text explanations of visual elements on the website.  According to the National Federation for the Blind, there are 7.6 million Americans living with some type of visual disability. This article discusses the nature of these ADA lawsuits and available defenses.  A second follow up article will address the audit and remediation of non-compliant websites, with a focus on how to prevent future multiple lawsuits.

The ADA is essentially a strict liability statute, meaning that liability can be imposed for any violation, regardless of any showing that the alleged discrimination is intentional, although available remedies are limited to injunctive relief and reasonable attorney’s fees.  On the other hand, remedies under the Unruh Act are more extensive, including damage awards up to three times the amount of actual damages, with a minimum of $4,000, and an award of attorney’s fees.  Moreover, because the Act allows for such damages for “each and every offense,” there is a possibility that a court may find that each time a plaintiff attempted to access an inaccessible website may be considered a separate offense, allowing plaintiffs to aggregate the $4,000 penalty.  Brought in combination, a claim under the ADA and the Unruh Act can result in a minimum damage award of $4,000 (with the potential for multiple $4,000 penalties for every violation) and an award of attorney’s fees even for an unintentional violation of the ADA.

California has become a hot bed for these lawsuits because of the application of both the ADA and the Unruh Act.  Over 2,500 such lawsuits were filed nationwide in 2021, with a little more than half of those in California courts.  So, more than half of all the lawsuits filed nationally were filed in California; 72 lawsuits have been filed in Federal Court in the Northern District of California in the last 90 days alone.  The current focus of these suits seems to be wineries, but other industries will likely be targeted soon.

There is very little regulatory guidance on standards applicable to website accessibility. As such, Courts have relied on industry best practices to establish those standards.  Most prominent among these industry standards are the Web Content Accessibility Guidelines (WCAG), developed by the World Wide Web Consortium (W3C).  Web Content Accessibility Guidelines (WCAG) 2.1 (w3.org).  These are very broad guidelines, with a low threshold for violations. The clearest defense is to show that the website does not restrict access to blind and visually impaired users by proving compliance with the WCAG guidelines.  However, most websites that have not been audited and remedied in the last few months are almost certain to have some violations.

Assuming some violations, there are few, if any, effective defenses to defeat the claims.  California requires a nexus between the online complained of goods or services and a physical location considered a public location.  However, there is a low bar for establishing such a nexus; websites providing anything as simple as store/office locators, hours of operation, and an explanation of products and services offered at the physical location satisfies the nexus requirement.  This defense is therefore unlikely to be of help.  The last line of defense is to establish that there are no actual damages and limiting statutory damages to the minimum mandatory amount of $4,000, along with an argument that attorney’s fees should be minimal given that there are no real damages and that the suit is purely a hold up for attorney’s fees.  Most lawsuits of this type are being settled early in the process.

Part II of this article will discuss the best ways to audit and remedy websites that do not comply with WCAG guidelines.

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Carle, Mackie, Power & Ross LLP:
Arif Virji, Samantha Pungprakearti, Justin Hein or Kristin Mattiske-Nicholls.
707-526-4200, or email us.