Within the past month, California courts have issued rulings expanding the types of lawsuits that may be filed against website operators for failing to maintain certain accessibility standards. Given these rulings and the U.S. Department of Education, Office for Civil Rights’ recent trend towards focusing on website accessibility for local educational agencies (LEA), it is more important than ever to assess whether your websites meet industry standards for accessibility.
Courts across the country are increasingly holding that the Americans with Disabilities Act (ADA) applies to both the physical and online presence of businesses, often requiring websites to comply with industry accessibility standards such as the Web Content Accessibility Guidelines (WCAG) 2.0 or 2.1. According to accessibility researchers, the rate of federal web accessibility lawsuits filed this year has reached an average of one every hour and anticipated to reach over 2,000 lawsuits this year, the same as last year. While the most targeted industries have been retail and food services, public and private entities alike are more likely to receive challenges as courts, including California’s state courts, are lowering the barrier for plaintiffs to bring these lawsuits.
Thurston v. Midvale Corporation
The California Court of Appeal followed this nationwide shift earlier this month, holding that inaccessible business websites violate the ADA, and derivatively, California’s Unruh Civil Rights Act (UCRA).
In Thurston v. Midvale Corp., 2019 WL 4166620, (Cal.Ct.App. Sept. 3, 2019), a blind plaintiff tried to access defendant restaurant’s website to peruse its menu and make a reservation. Due to the website’s inadequate labeling and confusing coding, plaintiff’s screen reader software was unable to make out information contained in the graphics posted on the website or to help her make an online reservation. Although the website listed an email and a phone number, plaintiff disagreed that such alternative would have provided her the same privacy and independence afforded a sighted person.
In holding that Title III of the ADA applies to websites, the Court of Appeal pointed to the remedial and preventative nature of the ADA, adopting a broad construction in order to implement the statute’s fundamental purpose of eliminating discrimination against persons with disabilities. Id. at *5 (citing Hason v. Medical Bd. of California, 279 F. 3d 1172 (9th Cir. 2002)). The Court also cited the clear intent of Congress that the ADA “keep pace with the rapidly changing technology of the times.” Ibid. (citing H.R. Rep. No. 101-485, 2d sess, P. 391 (1990)). The Court ultimately held that public websites connected to a physical place of public accommodation are covered by the ADA, but it declined to consider whether websites not connected to physical places are covered all the same.
White v. Square, Inc.
Around the same time Thurston was decided, the California Supreme Court decided another UCRA case involving web accessibility, dropping the threshold for a plaintiff’s standing to bring such lawsuits.
In White v. Square Inc., 7 Cal.5th 1019 (2019), the plaintiff, a bankruptcy lawyer, intended to use defendant Square’s electronic payment system for his bankruptcy practice. After visiting Square’s website several times and carefully reviewing Square’s seller agreement, the plaintiff discovered that Square’s terms of service prohibited the use of its services for bankruptcy lawyers and practices. Plaintiff proceeded to the page of Square’s website where a user would typically register for its service, and stopped short of clicking on the “continue” button, believing that continuing with the intent to violate Square’s term of service would constitute fraud. Plaintiff then brought suit under California’s UCRA, alleging discrimination on the basis of occupation. The narrow standing issue presented to the Court was simple: when someone experiences barriers to access while visiting a website, must that person enter into an agreement or transaction with the business in order to bring a UCRA web-accessibility suit?
The Court held the answer is no. The Court examined existing case law on discrimination and accessibility issues encountered in the brick-and-mortar store context, and found analogous application in the cyber world. The Court likened plaintiff’s reading the website’s terms of service and being turned away to a shopper reading an exclusionary sign at a store before walking away. The Court concluded there is no reason why a plaintiff should be required to agree to the terms or enter the store, and suffer humiliation and denial, before being allowed to file suit. In other words, owners and operators of websites and mobile applications face legal exposure under the UCRA from those who browse their websites, so long as the visitors claim to have a genuine interest in using the business and show that they engaged with the materials on the website.
The Thurston and White decisions, allowing web accessibility suits to proceed under both the ADA and UCRA, mark a significant shift in the way LEAs must think about their online presence. Cases like Thurston and White lower the legal threshold for bringing web accessibility suits, further incentivizing plaintiffs and plaintiffs’ attorneys to bring such suits to more and more businesses and entities across a wide array of sectors. While these cases concern private businesses, public entities have been held liable under both the ADA and the UCRA for discriminatory practices, so it is important to recognize these cases have a direct impact on LEAs and their websites.
This increased exposure to liability should serve as caution to private and public entities that let their web accessibility standards lapse. It is more important than ever that LEAs reassess whether their websites meet accessibility standards, such as those promulgated by WCAG.