The 1990 Americans with Disabilities Act (“ADA”) and comparable state laws have allowed disabled Americans to more fully participate in society, ensuring that businesses provide access that otherwise was entirely absent in earlier eras. Through a staggered series of compliance steps over the past nearly 30 years, through lawsuits by plaintiffs and enforcement by government, businesses by and large are aware of their obligations to comply with the ADA, and do try to comply with its requirements.
As laudatory as that goal and the results of its implementation have been, many business owners are aware of the present proliferation of nuisance lawsuits by certain attorneys whose entire practice is to seek out small business owners, specifically to sue them for technical noncompliance. Because the law allows the prevailing plaintiff (but not the prevailing defendant) to recover their attorneys’ fees from the other side, the business owner often is placed in the situation of entering into a settlement with the plaintiff, rather than incurring the substantial expense of litigating liability through a lawsuit. And certain attorneys know that and count on that as their strategy for bringing claims of doubtful merit. While these types of plaintiff’s lawsuits used to require a lot of effort on the part of plaintiff’s attorneys, a new era has dawned whereby the attorney doesn’t have to do anything more than sit at their desk, and, they can find business owners in clear violation of the ADA simply by the click of a mouse.
That is because federal ADA and California’s Unruh Act now assess liability on certain businesses for failing to make their websites accessible to the handicapped. Specifically, this new sub-area of the ADA practice, which has been gaining momentum since 2018, impacts businesses who have a physical location that is open to the public, to ensure that their website is also accessible to people with disabilities. Businesses without any physical presence or that do not invite the public to a physical space usually are not required to make their website compliant.
The Unruh Act is California’s law that incorporates the ADA’s requirements and provides for damages when a business discriminates against a person based on disability. California courts have found that that a business has violated the Unruh Act if its website could not be used by a visually impaired person with a screen reader and have ordered that these business make their websites comply with Web Content Accessibility Guidelines (“WCAG”) Level 2.0 AA. The damage assessed for failure to make the website compliant with WCAG standards is $4,000 per violation, which sounds painful, but not devastating. On the other hand, the business’s obligation to pay the plaintiff’s attorneys fees is what really creates the danger. Even though these lawsuits have occurred only in a few states, such as California, Pennsylvania, and New York, businesses in other states could become targets of these lawsuits, as one lawsuit, against a Colorado Company, Bag n’ Baggage, was initiated in California and the company was found to be liable to a California plaintiff.
Companies must make a special effort to ensure that their websites are compliant immediately, because a lawsuit could just be a click away.
By Justin P. Karczag, Esq. and Muhammed Talal Hussain, Esq., Encore Law Group LLP