California Unruh Act and ADA Website Accessibility Lawsuits in 2022
The best way to prevent a California Unruh Act demand letter or lawsuit is to immediately make your website, mobile app, or other digital asset in conformance with WCAG 2.1 AA.
California and New York will continue to be the top hubs for website accessibility lawsuits in 2021.
The reason California and New York are so popular is each state has corresponding civil rights acts that parallel the ADA in terms of requiring non-discrimination but provide for plaintiffs to capture damages beyond attorneys’ fees.
In this article, we’ll focus on California and their state civil rights act called the Unruh Act.
The Unruh Act (officially California Civil Code section 51) was enacted in 1959 to ban discrimination from businesses establishments.
In 1992, the Unruh Act was amended to apply to persons with disabilities, adopting the Americans with Disabilities Act (ADA) standards wholesale, which means that any violation of the ADA is a violation of the Unruh Act.
For our purposes, this means if your website is deemed to be inaccessible and thus not ADA compliant, it is not only a violation of the ADA but a violation of California state law.
Now, here’s where the legal gold rush comes into play:
Under section 52 of the California Civil Code, victorious plaintiffs are entitled to up to 3x the actual damages and no less than $4,000 in statutory damages.
Damages can include emotional distress.
Contrast this with the ADA. Under the ADA, no damages are permitted for plaintiffs themselves — only attorney’s fees are provided for (as well as injunctive relief).
This means it’s much more lucrative to be in the business of filing website and mobile app inaccessibility claims in The Golden State than it is elsewhere.
The result has been a 2018 and 2019 surge in California website accessibility lawsuits. 2020 didn’t experience the same numbers thanks to COVID-19 but there will likely be some bounceback in 2021 as plaintiffs’ law firms like Pacific Trial Attorneys, Wilshire Law Firm, and Potter Handy continue to litigate.
Does the Unruh Act Apply to Other States?
This is what I’d like to know.
Plaintiffs’ lawyers have already made this leap — they’re filing lawsuits against websites with headquarters in other states — but even under the reckless and loose legal website accessibility environment I’m not sold that Unruh Act claims work against website owners headquartered in other states.
I’ve read through the Unruh Act and it was clearly written for business establishments with physical structures in California.
I’ve also read through numerous legal commentaries on Unruh Act/ADA compliance website accessibility cases and I’ve yet to see anyone address this head on.
Moreover, I examined a lawsuit filed in California state court and the plaintiff’s lawyer insufficiently glossed over laying the foundation for how a defendant could be hailed into California state court for a law specifically intended for California business establishments.
A Porous Legal Foundation
Plaintiffs’ lawyers were already running amok with the ADA and now those licensed in California are taking that slack and tying another rope to it to make it even more lucrative to bring litigation against unsuspecting businesses.
This is what happens when you (the courts) enforce laws with your own liberal interpretation, making up the law as you go.
What’s happened in California is plaintiffs’ lawyers have taken the already vague and uncertain ADA (it doesn’t mention websites anywhere) and applied it to the California discrimination state law (which also doesn’t mention websites anywhere) and now have their own cottage industry of website accessibility lawsuits.
The litigation is abhorrent but because the law is not hashed out and no progressive action is being taken by state or federal courts, by the Department of Justice (DOJ), or congress, this trend will continue.
The Best Risk Mitigation Strategy
The best action you can take to prevent a lawsuit is to make your digital assets accessible using WCAG 2.1 AA as your guide.
Here is a quick bullet point list of recommended steps to take:
- Address any quickly identifiable critical accessibility issues (e.g., run an automated scan and fix the significant errors).
- Have an independent, third-party company that specializes in digital accessibility conduct an audit of your website, app, etc.
- Have your developers remediate your digital assets based on recommendations contained in the audit.
- Publish an accessibility policy on your website.
- When possible, obtain a conformance statement and/or certification for your website, app, etc. certifying that your website is in full conformance with WCAG 2.1 AA.
- Maintain accessibility by appointing an internal coordinator and/or forming an accessibility committee. Also, initiate training for web developers and content publishers.
- Continue to re-audit your digital asset on at least an annual basis.
For more details, here are the best practices for avoiding an ADA Website Compliance lawsuit in 2021.
Although making your website or mobile app is expensive, you need to do it. Obviously there’s the legal compliance aspect but there’s also the human element: If your website is inaccessible, you are preventing access to your services, products, information, etc.
I always advise clients to take care of accessibility now so that your time, money, and energy go towards accessibility and not litigation.
It’s the right thing to do.
You’re going to have to do it now or later so you have every compelling reason to take care of accessibility now.
This means you are far less likely to receive any California Unruh Act / ADA lawsuits or demand letters and you will have made your digital assets much more inclusive.