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ADVISORY – Restaurants, Movie Theaters and Retailers Face Scrutiny for Lack of Website Accessibility

Recently, the plaintiff’s bar has been targeting restaurants, movie theaters, retailers and other businesses, alleging that their websites violate Title III of the Americans With Disabilities Act (42 U.S.C. 12101 et seq. (the “ADA”) because the websites are not accessible to blind users. Section 12182 provides:

“No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.”

In addition to liability under the ADA, California businesses may face liability for lack of website accessibility under the Unruh Civil Rights Act (California Civil Code §51 et seq.). California law provides for statutory damages for each and every offense of no less than $4,000 plus attorney’s fees that may be determined by the court in addition thereto. The class action implications are staggering.

Website accessibility is not a perfect science and full accessibility may be costly and difficult to attain. Although the Department of Justice (“DOJ”) previously stated that it would issue regulations providing guidance on acceptable accessibility for private sector websites, issuance of those regulations has been postponed by the DOJ several times, most recently until 2018. Thus, companies must continue to operate with uncertainty as to the steps that must be taken to ensure compliance in order to avoid exposure.

California Civil Code Section 54.1 states that, for purposes of California law, “full and equal access, means access that meets the standards of Titles II and III of ADA.” Because the standards required by the ADA are not clear, California law is likewise unclear.

We are urging that our clients take steps to minimize their risk by ensuring their websites are accessible to disabled users. Absent ADA guidelines, we recommend that businesses use the Level AA standards of the Web Content Accessibility Guidelines (“WCAG 2.0”), published by the World Wide Web Consortium, which are the guidelines adopted by the DOJ, public education, and many law firms.

Compliance with WCAG 2.0 requires that websites be perceivable, operable, understandable and robust. Because of the technicalities and costs involved, we urge our clients to consult with professional technology firms to help them meet the WCAG 2.0 guidelines. Clients are also urged to take the following steps to reduce their risk exposure:

  1. Update the FAQ section of your website to address the issue of accessibility and to instruct users of your site how to report problems. Companies should activate a specific email address or hotline phone number for these purposes and should monitor these on a frequent basis.
  2. Adopt a website accessibility policy that includes a plan to improve and/or maintain accessibility within stated guidelines and an audit provision that includes regular review of WCAG-2 compliance;
  3. Designate an accessibility coordinator to manage and oversee your Company’s accessibility policy;
  4. Provide accessibility alternatives to website users that will allow them to access the information, goods and services on the Company’s website. Such alternatives can include an on-line chat function or live interaction on the telephone;
  5. Ensure that WCAG-2 compliance is ongoing with launches of new website pages and products.

Please contact Deborah Greaves for more information regarding this Advisory.

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