Accessibility claims increased significantly in 2020, with this specific type of ADA-related case increasing by 23% from 2019 to 2020.¹  This includes cases filed in federal court and those filed in California state court under the Unruh Act - with a direct reference to violation of the ADA.²

In California alone, a total of 989 cases were filed in 2020, representing almost 30% of all accessibility cases filed in the United States.³  These claims go beyond the traditional complaints related to a website maintained by an organization.  While desktop websites dominate the overall number of lawsuit claims nationally, mobile apps continue to get significant attention along with a new trend in video content related claims.  These video claims demand that all video have closed captions and audio descriptions.⁴

The ongoing COVID-19 pandemic has created a surge in the reliance on websites and other platforms to accommodate working from home, online learning, as well as ordering groceries, food or other items online in an effort to stay home and safe.  However, along with this substantial increase in demand, many users who rely on accessibility features have found many websites and related mobile applications to be inaccessible for their needs.

California Requirements

While the Americans with Disabilities Act ("ADA") requires website accessibility under certain circumstances, California has two other specific legal requirements for accessibility.  These are:

1. The Unruh Act:  Under this law, all persons within California must be treated equally, including any facilities, services, or business establishments.  The Unruh Act imposes a penalty of $4,000 per violation.
2. The California Consumer Privacy Act (“CCPA”):  All businesses subject to the CCPA are required to provide specific notices to consumers, in an accessible and understandable format, regarding their personal information, and affords guidance to the how consumers can control personal information.  Penalties under the CCPA are up to $7,500 per violation.

Keep in mind these requirements apply to not only businesses that may be based in California, but have been held to apply to businesses that are located out of state, so long as they sell to California consumers and/or direct marketing efforts to California residents.⁵

Accessibility Standards

While the ADA and Unruh Act have mandated general website accessibility for some time, regulations associated with the CCPA specifically adopt the WCAG 2.1 guidelines dated June 5, 2018 (" WCAG") as the standard by which reasonable accessibility will be measured.

WCAG has been used by those in the accessibility industry for some time and is promulgated by the World Wide Web Consortium ("W3C"), an international community which works to create standards for internet websites.  These outline how to make websites accessible for those with visual, auditory, physical, speech, cognitive, language, learning, and neurological disabilities.

Designing for Accessibility

Any website or mobile application should take into account both interface design and visual design in order to make use more accessible.  Keep in mind that a number of design elements may require modification.  Any text should be easy to resize into a larger format and still be legible.  Color contrast can be problematic when visually impaired users view a website.  Relying on color alone to distinguish website elements can also present challenges depending on the user.  Lastly, text alternatives are necessary to describe any information displayed in a photograph or other image.

Consulting an accessibility professional on design is highly recommended as overlay tools, or other widgets aimed at addressing accessibility do not always make the experience better for individuals with disabilities or satisfy accessibility standards.

Why Does This Matter For Businesses

• It is imperative that websites and mobile applications be reviewed in detail with IT professionals to confirm accessibility and proper incorporation of accessibility guidelines.
• For those organizations subject to the CCPA, a very thorough and thoughtful review of all notices and other CCPA compliance documentation should be completed by privacy professionals to properly address the CCPA Regulations, and its accessibility requirements.  Requisite notices including privacy policies and any other notices to be provided to consumers such as notices of collection, notices related to loyalty programs and notices to opt-out will now likely need to be provided in multiple formats.
• Penalties are considerable. In the context of all of these requirements, a company may face upwards of $11,500 in fines and damages per violation if website accessibility is not properly addressed.

How We Can Help

Our Data Privacy & Security attorneys are available for consultation by contacting our office at 949-854-7000.

1 2020 FULL YEAR REPORT on ADA DIGITAL ACCESSIBILITY LAWSUITS by UsableNet - https://usablenet.com/resources

2 Ibid.

3 Ibid.

4 Ibid.

5 See Thurston v. Fairfield Collectables of Georgia, LLC filed August 26, 2020 in the Court of Appeals of California, Fourth District, Division Two.