Any business operating a website for use by customers or other members of the public should take heed of a recent California decision that found a retailer liable for violations of federal and state disability access laws based on a disabled individual’s inability to navigate a website using a screen reader program.

In Davis v. BMI/BNB Travelware Co., the plaintiff, a blind individual, filed suit against a retailer based on the theory that its website, ColoradoBaggage.com, was not accessible to the disabled. The plaintiff maintained that his screen reader software (commonly used by individuals with visual impairments to access online content) experienced various problems when attempting to navigate the website, which had not been properly coded to be compatible with such screen reader programs.  The California Superior Court, the trial court, ruled in favor of the plaintiff on claims under the Americans with Disabilities Act and the California Unruh Civil Rights Act, awarding monetary damages and broad injunctive relief against the retailer.

...the plaintiff and his counsel were not required to go through the effort and expense of a trial to prove the claims.

The court’s ruling is noteworthy in several respects.

First, the court decided the plaintiff’s claims based on a summary judgment motion.  As the court was willing to adjudicate complex and fact-specific legal issues at the summary judgment stage, the plaintiff and his counsel were not required to go through the effort and expense of a trial to prove the claims.

Also, the court found the retailer liable for the alleged violations based on a relatively limited showing.  For example, the court ruled that the website was subject to federal and state disability access laws based on a finding that a “sufficient nexus” existed between the defendant’s retail stores and the website, but the court’s written decision did not describe what constitutes a sufficient nexus or identify the particular website features that justified such determination.

In his motion, the plaintiff argued that a sufficient nexus existed simply because the website contained a store locator and enabled visitors to learn about the products available for purchase in the defendant’s retail stores. Similarly, the court found that the plaintiff’s description of the alleged access barriers on the website was sufficient to prove a violation of federal and state law, but the court’s ruling did not identify any specific accessibility regulations, guidelines or other standards that it was applying or the particular portions of the website that it found to be deficient.

...the court found that the plaintiff’s description of the alleged access barriers on the website was sufficient to prove a violation of federal and state law

It is also noteworthy that the court ordered a monetary award ($4,000 in statutory damages under the California Unruh Act) as well as a broad injunction against the defendant. The injunction required the retailer to make the website “readily accessible to and usable by visually impaired individuals” in accordance with the standards set forth in a submitted expert report (which, among other things, identified more than two dozen issues in the website requiring remediation under the Web Content Accessibility Guidelines 2.0, published by the World Wide Web Consortium) or “to terminate the website.” The plaintiff was also entitled to apply for an award of his attorney’s fees and costs under the federal and state statutes.

As a trial court ruling, the decision in Davis will not be published and is not binding on any other court. Not every case will be decided in the same manner. Still, the Davis ruling should serve as a warning to all businesses that operate websites used by the public.  Website accessibility lawsuits have become increasingly common across the country, in particular in states with access laws providing for statutory damage awards. The Davis court’s decision to grant summary judgment and broad monetary and injunctive relief not only demonstrates the substantial risks faced by such businesses, but it may embolden potential plaintiffs and their counsel seeking to become active or even more active in this area of the law.

...it may embolden potential plaintiffs and their counsel seeking to become active or even more active in this area of the law.

Accordingly, proactive measures should strongly be considered, even before being subject to a lawsuit, a demand letter or a customer complaint.  For an existing website, a business may engage a website accessibility consultant to perform an assessment of the website, to offer options for whatever remediation may be necessary, and to assist with the implementation of procedures to ensure that new content and other future website changes do not lead to new accessibility problems.  A business contemplating the launch of a new website should certainly be mindful of these issues and the need for specific contract terms with and measures to be used by its website developer to ensure compliance with applicable access laws.

Lastly, due to the complexity of the numerous relevant legal issues, including what standards may apply and whether a particular website is even subject to federal and state accessibility laws, businesses should strongly consider consulting with legal counsel experienced with such laws and disputes.

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[Christopher Wong is a shareholder in the Disability Access Practice Group at Ogletree Deakins.  Mr. Wong is based in the firm’s Los Angeles office and can be reached at christopher.wong@ogletreedeakins.com.]