If you had asked me a few years ago about ADA accessibility lawsuits, I would have talked about the importance of ensuring your business’s seating, aisles, and restrooms complied with the ADA accessibility guidelines. Although plaintiffs continue to file lawsuits alleging barriers to physical accessibility, over the past two years, a new type of accessibility lawsuit has become very common. Rather than focusing on physical barriers, more and more lawsuits are now being filed by visually-impaired plaintiffs alleging that the websites of businesses are inaccessible and violate Title III of the ADA. These lawsuits typically allege that the visually-impaired plaintiff visited the website of a business and was unable to access all of the businesses products and services. Because visually-impaired individuals often rely on screen-reading software to access websites, if websites are not properly formatted in a way that allows the software to decipher the information, visually-impaired individuals may be unable to fully access the website.
California has been disproportionally hit with these website accessibility lawsuits, largely because of the Unruh Civil Rights Act (UCRA). Although a plaintiff suing under Title III of the ADA is usually only entitled to equitable relief and attorney’s fees, under California’s UCRA, a plaintiff who establishes a violation of the ADA is also entitled to recover the greater of their actual damages or statutory damages equal to $4,000.
Perhaps it should come as no surprise that these claims have begun to spill over to the employment world. The newest wrinkle we have seen involves visually-impaired job applicants who target employers that use online application portals which the applicants claim contain accessibility barriers. These applicants have begun filing lawsuits alleging that these alleged barriers prevent them from equal access to apply for employment. Rather than filing claims under Title III of the ADA (which applies to places of public accommodations), applicants sue under Title I of the ADA (which prohibits employers from discriminating against qualified disabled employees and job applicants.) Not surprisingly, plaintiffs in California are also bringing claims alleging violations of the UCRA and the Fair Employment and Housing Act (FEHA) under similar legal theories.
While it too soon to determine how receptive California courts will be claims of employment discrimination based on allegedly inaccessible online application websites, we strongly recommend that employers and businesses regularly evaluate and update their websites to ensure they are accessible and comply with the Web Content Accessibility Guidelines (WCAG) 2.0 or 2.1, the current gold standards for ADA compliance. A quick reference guide to the WCAG guidelines is available here: https://www.w3.org/WAI/WCAG21/quickref/ Remember, the best and only way to safeguard against a website accessibility lawsuit is to ensure your website is and remains accessible.
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