Rachelle Taylor Golden is an attorney with Hatmaker Law Group, who uses a manual wheelchair. She maintains an active practice in California focusing on proactive public and private entity ADA and Unruh compliance, and litigation defense representing businesses throughout the State. She also regularly handles labor and employment law and litigation before state, federal and state agencies. She is consultant with Civil Justice Association of California, and frequently consults and works with elected official in drafting ADA and Unruh reform. She can be reached at email@example.com
The Americans with Disabilities Act (“ADA”) and the California Unruh Civil Rights Act (“Unruh Act”) are often used as a conduit for serial plaintiffs to acquire a substantial amount of money through settlement, for very minor, if not trivial, ADA violations, using a “nickel and dime” approach ($5,000.00 to $10,000.00, or more) for repetitive cases.
Website litigation is a new phenomenon, and I have seen traction beginning in the middle of 2016 and observed a consistent increase in litigation. There have been thousands of lawsuits filed against businesses large and small for barriers to website accessibility. The number is not expected to slow down any time soon. It is no surprise that California is in the top-five states for having the most website accessibility lawsuits filed. There are those cases which deal with legitimate access barriers, and there are those cases where predatory plaintiffs encounter “barriers” to a business, without leaving their living rooms. One might ask, “How could this possibly be?”
When I regularly conduct presentations on this topic, the first question I get asked is, “What does it even mean to have an accessible website?” The answer to that question is a bit convoluted as a “communication” disorder is hardly ever consistent between one person to the next. So, while a website may be usable by one person with a cognitive, vision, or hearing impairment, it may not be usable by another.
An inaccessible website can look like this:
- A person with a visual impairment is unable to see the photographs posted on a website, and therefore they need the website to be coded in a way that translates the photograph into text so that the website is perceivable.
- A person with an upper mobility impairment may not be able to use a mouse to navigate a website and needs to operate the website using only a keyboard.
- A person with a cognitive impairment wants to purchase concert tickets from a website but is unable to process the information on the screen in the five-minute time provided for checkout. They too, need the website coded in a way that will allow them to slow the time allowed for the website to be understandable.
- A person who is blind may use a screen reader which will read the screen aloud. The website must be robust enough to be compatible with this type of assistive technology.
A non-accessible website can present very real barriers to those who have visual, auditory, or cognitive impairments. With that being said, the internet can be a person’s way of finding liability, where none really exists. For example, a person who uses a wheelchair navigates to a hotel website and is unable to easily find information about accessible room accommodations. The information is there; they simply do not want to take the time to read the information on the screen. The argument I often am faced with is, the plaintiff was unable to reserve an accessible room because they could not “easily locate” whether a particular unit complied with the accessibility design standards. Forget about calling the property and asking, that would be entirely way too much trouble. Unfortunately, regardless of whether the website was actually “accessible” to that person, the defendant is left to either litigate the frivolous lawsuit or, again shelling out between $5,000 to $10,000 to settle it. This, my friends, gives persons with disabilities, like myself, a bad name.
So, what is one left to do? Practically speaking, my recommendation for determining if your website is accessible is to test your website to see whether it complies with the Web Content Accessibility Guidelines (WCAG), level 2.0 AA, or greater. WCAG 2.0AA means that the website is coded in a way that is perceivable by the user with the disability, operable by the user, understandable by the user, and robust enough to be compatible with various types of assistive technology.
There are automated tests that can be downloaded from the internet, which is a great starting place to determine if your website meets WCAG 2.0AA. Be careful not to wholly rely on these automated tests as they can produce inconsistent results. Meaning, the test may miss an inaccessible feature on your website during an initial test and then pick it up during a second or third test. The best way to obtain consistent auditing results is by hiring a company to conduct a live-user audit. This means that the company will test your website with an actual person with a disability using their assistive technology. They will then prepare a report and will work with your web developer to remediate the inaccessible features.
If you work with an IT company or pulled a website template off the internet, contact them to find out whether the website is compliant with WCAG. If the IT company or the website company does not know was WCAG 2.0 AA is, then if I were a betting person, I would put my money on that the website does not comply.
While the ADA and the Unruh Act were enacted to allow persons with disabilities “full and equal enjoyment” in “any place of public accommodation,” in reality, these amazing bodies of law are often used as a sword against businesses to obtain a quick settlement. The best way for you to protect your business is to audit and upgrade your website. The second best thing you can do is to think of remediation as putting an investment back into your business so that you can increase your bottom line by being accessible to all users, which is estimated to include over 1 Billion people worldwide. Remember, the money of a person with a disability is just as green as anyone else’s.