Los Angeles cannabis retail dispensaries are new targets for law firms seeking to enforce the Americans with Disabilities Act and California’s Unruh Civil Rights Act. You thought the shutdown of your brick and mortar retail facility due to COVID-19 would provide some reprieve from these lawsuits? Think again — the new target is your website.
While business owners are aware that their brick and mortar locations have to be accessible to persons with disabilities, many are unaware that the access requirements of the Americans with Disabilities Act (“ADA”) and California’s Unruh Civil Rights Act (“Unruh”) (California Civil Code § 51 et seq.) may also apply to a company’s website.
Recent state and federal court decisions have made it clear that a website must contain content which is accessible to individuals who are blind or visually impaired. These decisions usually refer to the standards set forth in the Web Content Accessibility Guidelines (WCAG) 2.0, and focus on whether the website is suitable for screen-readers, uses descriptive links, and is otherwise accessible to persons who are blind or visually impaired. For a deeper look into WCAG 2.0 please refer to https://www.w3.org/TR/WCAG20/
Increase in Lawsuits
There has been an increase in lawsuits brought by individuals alleging that websites which they have visited do not contain content suitable for screen-readers, do not use descriptive links, and are otherwise not accessible to persons who are blind or visually impaired. If your company is named as a defendant in this type of suit, you could be subject to paying statutory damages to the individual bringing the suit, and also having to remediate your website to make it readily accessible. Worse, you may be required to pay the attorney fees and costs of the claimant, (California Civil Code Section 52(a)).
If your company’s website does not comply with the WCAG 2.0 standards, you could be targeted.
Talk to Your Web-Developer
To ensure your company’s website is legally compliant, we suggest you contact a service provider with experience in this area as soon as possible. We have a list of suitable service providers if you do not already use one. Your current web-developer is probably the best starting point to ask these questions:
- What accessibility options does our website provide?
- Does our site meet the standards of WCAG 2.0?
- Do we need additional vendors (i.e., a software developer) to bring our website up to the standards of WCAG 2.0?
- What is the cost and timeline associated with remediating our website?
Many web-developers implement basic accessibility features on standard websites. But these basic accessibility features may not meet the standards of WCAG 2.0. A more substantial overhaul is costly, but may not be out of reach. Ask your web-developer and discuss a plan to bring your website into compliance.
Remediation Recommendation
If you identify areas of non-compliance, we recommend immediate remediation of the offending issues. Fixing the issues quickly has some significant benefits and provides defenses in a related lawsuit:
- It establishes that you took action before a lawsuit was filed, which serves as evidence that you operate in “good faith”;
- It creates a trail of evidence showing that the discrimination has ended, which may provide a defense based on “mootness”;
- It undercuts the attorneys’ entitlement to ongoing legal fees, since the discrimination has ended;
- It may reduce the damages by 50% if fixed within 30 days of the filing of the lawsuit.
Review Your Agreements
You may have agreements and/or insurance policies which should be reviewed in the face of an ADA lawsuit. Among the documents to review are your insurance policies and web-developer/website hosting service agreements.
Your insurance policy may provide coverage for the claims asserted in an ADA lawsuit, even if such a lawsuit is based upon your website. Your web-developer or web-hosting platform may have agreed to indemnify you, or cover your liability, in the event of a website compliance issue.
Please contact us for a review of these agreements and to determine the extent of your rights if faced with an ADA lawsuit.
By GianDominic Vitiello, August 20, 2020