Easie launches website accessibility compliance program for business

As the world continues to work remotely, interact digitally and communicate technologically, current regulations have been expanded to protect the disabled, including requirements for website accessibility. In the United States, the federal regulation that applies is Title II and III of the Americans with Disabilities Act (ADA). 42 U.S.C. § 12101, et. seq. Most states have adopted similar legislation to the ADA.

California is one of the strictest states in this area. In California, the Unruh Act (California's Civil Code §51 and §52) is especially notable local legislation because it provides for a mandatory statutory penalty of $4,000 as well as payment of plaintiff’s costs and attorney fees.

In practical application, website accessibility compliance is now based on the Web Content Accessibility Guidelines (WCAG) version 2.1 which replaced version 2.0 on 5 June 2018. Here is a quote by WCAG on the purpose of these guidelines:

“Following these guidelines will make content more accessible to a wider range of people with disabilities, including accommodations for blindness and low vision, deafness and hearing loss, limited movement, speech disabilities, photosensitivity, and combinations of these, and some accommodation for learning disabilities and cognitive limitations; but will not address every user need for people with these disabilities. These guidelines address accessibility of web content on desktops, laptops, tablets, and mobile devices. Following these guidelines will also often make Web content more usable to users in general.”

In California, a business faced with a lawsuit filed for non-compliance with the ADA and Unruh Act will be exposed to:

$4,000 minimum statutory damage per incident (in practice does not include repeat visits to the same website by the same plaintiff).
The cost of plaintiff filing the complaint: $450.
Plaintiff’s attorney fees for drafting and filing the complaint: $500 to $1,000 (low estimate). These plaintiff attorney fees can rise dramatically if the lawsuit is litigated.
The business having to pay its own attorney fees to address the complaint.

A non-compliant business now faces at least $6,000 in fees if the lawsuit is filed and this does not include the increase in costs for any attempt to fight back. Unless the business can demonstrate compliance with WCAG 2.1 prior to the lawsuit being filed, the business will most likely lose. The Unruh Act is strict liability and lack of knowledge of the law or lack of intent to discriminate is not a defense.

The $4,000 and attorney fees are just the minimum because the Unruh Act provides that a business:

”...is liable for each and every offense for the actual damages, and any amount that may be determined by a jury, or a court sitting without a jury, up to a maximum of three times the amount of actual damage but in no case less than four thousand dollars ($4,000), and any attorney's fees that may be determined by the court in addition thereto...”

Note that emotional damages are also part of the Unruh Act.

Not having an accessible website

is a major business risk,

especially in California

There is some ongoing debate about whether a website is subject to the ADA. The U.S. Department of Justice has stated that the ADA applies to a company's website. However, without binding regulations from Congress, federal courts are in debate over whether the ADA applies to websites.

The minority exclude websites from coverage under Title III because it interprets a place and public accommodation as a physical space and not non-physical access. In the 2019 Robles v. Domino's decision 913 F.3d 898 (9th Cir. 2019), it was ruled that websites must comply with the ADA only if there is a nexus between the website and access to a physical place of public accommodation.

The broader interpretation held by the majority holds that Title III does not require a physical space or nexus to apply. Despite this being an ongoing, developing process, from 2017 to 2018, Title III ADA website accessibility lawsuits increased by 177% in the US:

This increase in litigation should be a wake-up call to businesses as they may be inadvertently exposed to risk under the recent expansion to the civil rights laws. California, New York and Florida saw the high rates of Title III Lawsuits from January to June 2019 with California alone seeing 2,444 cases:

This trend will likely continue to increase further as US businesses remain closed due to COVID-19.

How do I know if my website is compliant?

When looking at your site, you should be evaluating it against WCAG 2.1, requirements. It is helpful to think about your site in the following accessibility categories:

Website presentation (e.g. descriptive text, page titles, etc.).
Website appearance (e.g. ability to increase text size, color contrast, distinctive links, etc.).
Content alternatives (e.g. alt tags on images, closed captioning, transcripts of text, etc.).
User control (e.g. no autoplay, review important submissions, etc.).
Website usability (e.g. search function, sitemap, keyboard-only option, etc.),

The actual requirements in WCAG for each section are comprehensive and a website accessibility audit by a subject matter expert is required to fully know if your website is compliant.

Examples of common compliance errors

While WCAG has many more types of non-compliant site features, here are some examples of common compliance errors seen on websites:

Alt tags.
Closed captioning.
Site links.
Keyboard access.
Accessible forms.
External documents.

Fixing your website (or “remediation”) must be completed as soon as possible to avoid risk exposure. WCAG also includes guidelines for evaluating site functionality against requirements.

While these might seem trivial, big companies like Amazon, Netflix, Sephora and Nike have all been subject to lawsuits for non-accessible websites. One law firm in Newport Beach has filed over 300 of these lawsuits in the State of California alone.

California case study:

Whisper Lounge restaurant

On 21 May 2018, a California court in Los Angeles ruled on summary judgment that Whisper Lounge restaurant violated the Unruh Act because its website could not be used by a blind person and ordered that Whisper Lounge comply with the Web Content Accessibility Guidelines (WCAG) Level 2.0 AA. The court rejected the claim from the Whisper Lounge that having a phone number and email address on the website as a sufficient alternative.

Despite the court upholding the minimum $4,000 statutory fee plus attorney’s fees, the court nevertheless held that plaintiff’s repeat visits to the same website did not establish separate offenses for calculating damages. Thurston v. Midvale Corp., 39 Cal. App.5th 634 (2019).

A detailed analysis of this case can be found at this link and the court filing can be found at this link.

Easie can help make your website accessible

We launched this program to help businesses set up accessible websites. The process of doing this consists of the following:

Website current state audit by Easie specialists.
Audit report and remediation suggestions.
Installation of low-code branded accessibility widget on website.
Compliance review and accessibility statement.

Easie’s unique team consists of lawyers, developers, design specialists and other technical professionals to create a technical accessibility solution for your unique website. There are two broad options for website accessibility compliance services:

Semi-automated system (best for small to medium websites).
Advanced accessibility compliance project (advanced websites, highly custom systems, enterprise, etc.).

Schedule a free 15-minute consultation to get started

Book your meeting

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