Lawyers are Trolling for Disability Access Claims

State and federal laws validly prohibit businesses from discriminating against disabled persons.  In California, the Unruh Act provides that disabled people “are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.” Federally, the Americans with Disabilities Act (ADA) prohibits disability discrimination.

While most businesses would never intentionally discriminate over someone’s disability, companies may be exposed to claims for having inadvertently made website access difficult or impossible for visually or hearing-impaired individuals or others, such as epileptics. On behalf of select disabled persons, a number of law firms specialize in making cookie-cutter demands for payment and other actions over such supposed violations, with concentrations in certain states.  See also: Surfin’ USA: Website Accessibility Lawsuits are Alive And Well Under The ADA (January 29, 2021)  and  Businesses ‘sitting ducks’ for lawsuits because websites aren’t ADA compliant (February, 6, 2019).

There are many reported cases of abuse. In lieu of documenting actual accessibility issues and assisting in their good faith resolution, offending attorneys, showing little or no idea of a site’s actual accessibility, apparently hope they can scare at least some targeted businesses into promptly paying their way out of unfounded accusations.

Website owners should ensure that their websites are compliant, but how?  Even courts are split on whether and how disability laws apply.  For example, in January 2019, the federal Ninth Circuit Court of Appeals (over California and other western states) ruled in favor of requiring website accessibility so disabled customers could order from Domino’s Pizza.  Then, in April 2021, the Eleventh Circuit (over Florida, Georgia and Alabama) ruled that only brick and mortar businesses are subject to federal disability laws and the lack of website accessibility for the supermarket website did not prevent the plaintiff from accessing the store or its wares.

Despite Justice Department proposals years ago, the feds have long punted on adopting guidelines for accessibility compliance.   Instead, many courts (but not all) and the DOJ rely on the non-governmental Worldwide Web Consortium’s widely published standards, the technically complicated “Content Accessibility Guidelines (WCAG) 2.1.”

While not techies, we have guided client companies to sources for achieving and maintaining WCAG compliance. Assistance is available for example from  accessiBe, See the white stick figure on blue background in the bottom right corner of our website.  That company offers daily website compliance monitoring, updating every 24 hours for new site content.

For more information, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

See also:

• What’s New 2021 Getting Under the Hood New Toolkit for Workplace Leave Compliance (February 25, 2021)
• Workplace Discrimination in a Pandemic – California’s Updated COVID-19 FAQs Call for Careful Decision Making (August 5, 2020)
• Ministers and Messengers – Supreme Court Removes Discrimination Protections for a Wide Range of Church-Affiliated Employees (July 16, 2020)

Helena Kobrin
September 3, 2021