Readers of this blog are familiar with the thousands of lawsuits filed annually against businesses with inaccessible websites. Since the Americans with Disabilities Act (ADA) is a federal law, most of those lawsuits are filed in federal courts. The one exception has been California. Nearly a quarter of the suits filed this year have been filed in California state courts. That may change.
Last week, the California State Court of Appeals ruled that online-only businesses are not public accommodations under the ADA. As a result, their websites are not subject to accessibility requirements. The plaintiff has appealed the verdict to the California Supreme Court, but it is highly likely that the decision will be left to stand.
How does this ruling impact your business?
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Legal background on the ADA and web accessibility
In order to understand the impact of this ruling, we need to provide a bit of background. Under the ADA, public accommodations must be made accessible to customers or users with disabilities. But what are public accommodations? The web was barely invented when the ADA was first passed back in 1990 and the law’s examples of public accommodations are primarily physical locations. Over the past decades, federal courts have repeatedly ruled that the ADA applies to ATMs, websites and other digital services. But as with many court decisions, the devil is in the details.
In some federal circuits (regions sharing a court of appeals), courts have ruled that only websites tied to a physical public accommodation are covered by the ADA. For example, a retailer like Target would be required to have an accessible web presence, but an online-only e-commerce store would be exempt. In other locations, the courts have ruled that all websites can be public accommodations including online-only businesses.
What makes California different
Under the ADA, plaintiffs can sue to force a business to fix a disability access issue. (The plaintiff can also collect attorney fees, which is one reason that ADA litigation can be so expensive.) In California, there is also a state civil rights law called the Unruh Act. While the ADA does not award any monetary damages for violations, the Unruh Act allows plaintiffs to claim damages with a minimum award of $4,000 per violation. This has made California a very popular venue for accessibility lawsuits of all kinds, including web accessibility complaints.
How this decision affects businesses
The California State Court of Appeals ruling offers significant relief to online-only businesses. Since they are no longer considered public accommodations under California state law, online-only e-commerce sites are safe from Unruh Act lawsuits and the associated $4,000 awards per violation.
However, many websites are still subject to accessibility requirements under the Unruh Act. Any business with a physical nexus, such as a store or other service that is covered under the ADA and state law, can sued for an inaccessible website and subject to treble damages.
What has not changed
It is important to keep in mind that this is a state court decision. The ADA is a federal law and is interpreted based on federal court rulings. California belongs to the Ninth Circuit, which has ruled similarly that the ADA only applies to websites with a physical nexus. So it is fair to assume that we will see many fewer website accessibility lawsuits filed in California state or federal courts.
That said, websites can be operated from any state. This means that plaintiffs can choose to file lawsuits in more favorable locations. For instance, more than half of all ADA website accessibility lawsuits are filed in New York already. We can expect that number will continue to grow.
Precedent is (mostly) clear
In addition to federal court rulings, the federal Department of Justice (DOJ) recently issued guidelines suggesting that business websites are also subject to accessibility requirements under the ADA. The DOJ guidelines are not as specific as we would like as to what you must do to satisfy web accessibility requirements under the ADA. But most courts have used the most recent version (2.1) of the Web Content Accessibility Guidelines (WCAG) as their standard.
Our recommendation
Our recommendation remains that retail businesses, including online-only e-commerce websites, take care to build their websites in an accessible manner. It’s not only the law. There is also a strong business case to be made for accessibility. Roughly 20% of the population has a disability. It’s worth accommodating such a big slice of the market to get better engagement, conversions, and sales on your website. In addition, most accessibility best practices improve the overall user experience for all of your users as well and can also improve your SEO rankings.
If you are new to accessibility, it’s never too late. You can always evaluate your site for compliance with the WCAG and ADA and take steps to improve its accessibility. You can even receive 50% of your spending on accessibility back in federal tax credits annually.
