State Accessibility Laws : Latest Unruh Act Rulings Ensure Heavier Surge In California
While the focus of website owners has been on the surge of American Disabilities Act (ADA) compliance lawsuits, businesses also need to be aware of state laws as well. Life is especially tough businesses with websites that fail to be accessible in California. Not only do such businesses need to comply with the ADA, but their websites must also comply with the Unruh Civil Rights Act. Unruh Act website compliance is about to blow up in California where the state law (arguably) broadens the scope of website accessibility to include virtual businesses without a brick-n-mortar location, and also includes statutory damages. Ouch.
According to Wikipedia, the law claims “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, or sexual orientation are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.”
ADA vs Unruh Act Website Compliance
California’s 9th Circuit Federal Court has interpreted ADA Title III to be limited to websites with a nexus to a physical location (see Dominos Case). However, the Unruh Act however very clearly states that it applies to “all business establishments of every kind whatsoever.” Yet, still that notion is being challenged.
While the ADA does not allow for damages to plaintiffs (only attorney’s fees), the Unruh act a victorious plaintiff is entitled to 3x actual damages with a minimum of $4,000 in statutory damages… per incident. Defining “incident” could get very interesting. If the plaintiff visits the website 10 times, is that worth $40,000. Or if 10 people in a class action visit the website 10 times, is that $400,00?
In practice, the Web Content Accessibility Guideline (WCAG 2.0 A, AA) serves as the de facto standard for both.
Recent Unruh Act Website Lawsuits & Legal Precedence in California
Web-related Unruh Act lawsuits are beginning to establish precedence in California. The most recent, Thurston v Midvale Corporation fell in favor of the plaintiff. Midvale appealed, and the California Court of Appeals affirmed the previous judgment that Midvale had violated the Unruh Act by having an inaccessible website. They further affirmed the injunction mandate forcing Midvale to make the website comply with Web Content Accessibility Guideline (WCAG) version 2.0 and level A + AA.
One bonus for defending business owners, is that this court restricted damages to $4,000. The court did not allow $4,000 for each separate visit to the website.
Surge in California Unruh Act Website Lawsuits Expected
California was already the leading state with Federal lawsuits. Twice those of #2 New York. And because Unruh Act cases provide a minimum of $4,000 to the plaintiff, it's impossible to imagine nothing other than massive growth in lawsuits against websites that fail to meet WCAG accessibility.
How to Make My Website Comply With The California Unruh Act?
Quite clearly, the answer is to make sure the website complies with the WCAG 2.0 (or current 2.1) at A, AA levels. The first step is to hire a web accessibility conultant to audit the website using best practices that include automated + manual + assistive technology testing. Automated cannot detect 70% of WCAG issues. Many mistakenly remediate using only automated results, and then get sued again. With a complete audit that includes remediation guidance, your existing web development team should be capable of making your website accessible to comply with the ADA and Unruh Act.
Or perhaps, it’s time to build a new accessible WCAG ADA & Unhrug complaint website, for which there are web design firms that specialize in building accessible websites.
Give us a call. We can help.