The construction industry is all too aware of the numerous requirements in building physical structures that the Americans with Disability Act (ADA) established with its adoption in 1990. Penalties and fines for ADA violations can add up quickly. But, as of late, there has been an increase in lawsuits related to a specific area of the ADA and associated Unruh Act, the ADA’s powerful California state law equivalent. The increased lawsuits are focused on non-compliant websites. Importantly, whereas the ADA does not allow for damages to plaintiffs (with the exception of attorneys’ fees), the Unruh Act provides for a minimum of $4,000 in statutory damages per incident, plus attorneys’ fees. Thus, the recent uptick is focused on claims brought under the Unruh Act. Since most, if not all companies in the construction industry have at least one website, they are vulnerable to these claims and should perform regular audits of their websites with a qualified IT expert.
The Unruh Act was enacted to prevent discrimination based on various traits including disabilities, medical conditions, and genetic information. And Unruh Act protections are interpreted on a very broad basis by California courts. The Unruh Act protections also extend to websites, which must meet accessibility guidelines, or the website owner runs the risk of non-compliance (for example, contrast standards and text that can be deciphered by screen reader software, used by visually-impaired individuals).
The threshold to prove liability in an Unruh Act website violation lawsuit is low. But because the Act provides for a plaintiff’s recovery of attorneys’ fees, the stakes can become quite high if a website-access lawsuit drags on. There is indeed great risk associated with litigating such a claim. In fact, some plaintiffs’ attorneys have been found to “recruit” disabled plaintiffs and simultaneously file numerous lawsuits on their behalf for website violations. A physical ADA/Unruh Act barrier encountered multiple times by the same plaintiff can lead to multiple violations and associated penalties (a plaintiff who returns multiple times to the same non-compliant location). This means that a plaintiff who proves a physical barrier claim may be awarded $4,000 per violation, plus attorneys’ fees. Thus far, however, California courts have declined to extend that same reasoning to multiple website encounters. But the plaintiffs’ attorneys are working to win this argument.
So where does a business owner who operates a website start in order to avoid a website-based Unruh Act claim? There was a time in the recent past where only websites tied to a physical location were required to be compliant, however, that is less clear now. And online merchants are now vulnerable. Unlike strategies for physical compliance with accessibility standards, where there exists a sort of safe harbor program for good faith involvement of a Certified Access Specialist (CASp) that may potentially lessen an owner’s liability, no such equivalent for websites exists. At the end of the day, the best course to avoid costly litigation is to comply. But how?
Best practice is to consult with a trusted IT source who can audit your website and provide the necessary feedback and changes to ensure compliance. Additionally, it has been suggested that in order to achieve compliance one should enlist experts to test their websites and provide feedback. If you receive notice of a potential lawsuit or an already filed lawsuit based on an Unruh Act website violation, you should immediately contact an experienced attorney. Resolving these claims quickly is essential.
Dunn DeSantis Walt & Kendrick provides a broad spectrum of legal services to businesses of all sizes, from small, local start-ups and non-profits to large, national companies.
You can find additional information and resources on the DDWK website.