By Daryn Harpaz, ZenythGroup, and Carl Mueller, Esq., The Maloney Firm, APC
During this global health pandemic and the resulting COVID-19 Stay-At-Home orders, people are spending more time online than ever before, and businesses are now increasingly reliant on their web presence to reach consumers. As a result, websites will face higher scrutiny and should try to expand accessibility to as many users as possible. Like any problem, the COVID-19 situation creates an opportunity for businesses to responsibly expand their web presence, but this also comes with risks.
Most Southern California business owners have either faced or heard of their peers facing lawsuits for violating the Americans with Disabilities Act (“ADA”) and its California counterpart, the Unruh Civil Rights Act (“Unruh Act”). The general proposition of all ADA lawsuits is that business operators face liability for failing to make their establishments accessible to the disabled. However, since 2017, more and more ADA lawsuits have centered on business owners’ websites rather than their physical locations. Now, with almost the entire country forced into quarantine and shopping mostly online, the number of web-based ADA lawsuits is only going to increase.
These recent lawsuits over digital accessibility are just as legitimate a threat to business owners as their more traditional brick-and-mortar predecessors, and defendants are forced to cough up cash in the same way. This article directs business owners to resources that help them avoid online ADA lawsuits in the first place, and offers strategies on how to resolve lawsuits as quickly and cheaply as possible.
The ADA and Unruh Civil Rights Act apply to almost all businesses that provide public accommodations. Under these statutory schemes, business owners are barred from discriminating on the basis of disability through: (1) denial of participation; (2) unequal benefits; or (3) separate benefits. (42 U.S.C. § 12182(b)(1)(A)). This discrimination does not have to be intentional. Rather, if a lack of accessibility occurs even by accident, the business owner will face liability. To paraphrase, business owners and their landlords can be liable if any aspect of a business—whether it be the website, a mobile phone application, the stairs leading to the entrance, or checkout counter—are not equally accessible to the handicapped.
The Web Content Accessibility Guidelines (“WCAG”) are part of a series of web accessibility guidelines published by the Web Accessibility Initiative of the World Wide Web Consortium, the primary international standards organization for the Internet. The WCAG generally set out the elements necessary for a website to comply with the accessibility requirements of the ADA and Unruh Act.
Businesses that ignore the WCAG do so at their own peril, as a California defendant in an Unruh Act case faces minimum statutory damages of $4,000 for each violation of the ADA, and will have to pay the plaintiff’s attorneys’ fees if it loses at trial. Therefore, when a plaintiff finds a website with WCAG violations, the longer a defendant fights the lawsuit, the more the plaintiff is likely to recover, at settlement or final judgment. These statutory damages and attorneys’ fees provisions have created a cottage industry of law firms that focus their practices on website accessibility claims.
COMMON PROBLEM AREAS
In most website related ADA cases, plaintiffs focus on common WCAG requirements typically missing from websites, including but not limited to:
• Keyboard Accessibility
-All aspects of a website must be accessible via a keyboard, as many seeing impaired users cannot use a mouse.
• ARIA Landmarks
-Use landmarks to identify the header, footer, sidebar, and page content to allow screen readers to prioritize and clearly explain website content to the user.
-Text size should be scalable to 200%; and
-Headings must be functional for website navigation.
• Images and Videos
-Images and videos must use descriptive “ALT” text and file names for audio reader purposes;
-Video text transcripts and captions for the hearing impaired;
• Color Contrast
-Color contrast of websites generally must take color-blind users into consideration.
HOW TO AVOID AND MINIMIZE POTENTIAL ADA LIABILITY
The best way to beat an ADA claim is to never get sued. Companies like ZenythGroup provide ADA website accessibility and compliance services to manually audit websites and mobile apps for ADA violations, remediate the code to WCAG best practices, and help companies avoid becoming targets of website accessibility lawsuits by maintaining digital ADA compliance.
After updating your website to conform with WCAG requirements, ZenythGroup offers ongoing compliance certification and displays a digital accessibility badge on your website to demonstrate a company’s commitment to accessibility, which will further deter plaintiffs from bringing ADA lawsuits in the first place.
Even if you are compliant now, guidelines continue to be updated. WCAG 2.1 was recently adopted and the release of WCAG 2.2, which focuses on more mobile-centric accessibility requirements, is anticipated. ZenythGroup can help you update your website to get ahead of the game, and avoid the ongoing risk of facing ADA and Unruh Act related lawsuits seeking to enforce these updated regulations.
DEFENDING AGAINST ADA CLAIMS
If faced with a web-based ADA claim, a defendant can defend on few, if any, grounds other than actual compliance with WCAG or demonstrating that the offending website was immediately brought into compliance. However, it will likely cost more to fight the claims and win than to settle early.
To that end, if a website accessibility demand letter is sent to a defendant before a complaint has been filed, that defendant should strongly consider settling the case immediately. Notably, any settlement will require remediation (i.e., bringing the website into compliance with WCAG). As such, retaining a company like ZenythGroup to help bring a website into compliance with WCAG is critical as either a preventative measure, or after a lawsuit is filed and in addition to a settlement payment.
However, once a lawsuit has been filed, defense counsel must be contacted right away. There are certain defenses and procedural options available to defendants that must be exercised immediately. For instance, the Central District Court of California offers an early mediation program that grants a stay of all proceedings. Such a procedure can avoid substantial attorneys’ fees and damages, but can be waived if a defendant answers before requesting the stay for mediation
In summary, business owners can bring their websites into compliance with the ADA and adhere to WCAG best practices voluntarily, or be forced into compliance via litigation. In the days of COVID-19 and quarantine, websites are trafficked now more than ever, and are thus exposed to a higher number of potential plaintiffs. As such, business owners should act in their own interest to get into compliance with WCAG, both to avoid ADA litigation entirely and to respond quickly to litigation if it occurs.
Click here to download a free copy of our introduction to ADA website accessibility, or if you would like to speak to an expert on ADA website accessibility, please contact firstname.lastname@example.org or call 310-400-0194. If you need further legal guidance or are facing litigation, please contact Carl Mueller, Esq., of The Maloney Firm, APC at email@example.com or at 310.540.1505.