Web accessibility in the State of California is becoming more accessible due to stringent state and federal laws.
The reason is because lawsuits and settlements are increasing steadily across the state. The state is also introducing new and more stringent accessibility laws. In this blog we will take a look at the state accessibility laws and ADA Title III lawsuits.
The Department of Justice (DOJ) and Web Accessibility
The Department of Justice (DOJ) has taken online accessibility seriously over the past several years.
This is the ADA has strict requirements about what needs to be available to customers in a physical storefront. But the law in its original form did not have specific requirements for online websites.
The Department of Justice (DOJ) provided notice of creating a standard for websites and other guidance in 2010.
This included how to work with third-party content, time businesses had to comply, and exactly what was expected of sites.
The notice period lasted till 2016, with the Obama administration’s DOJ aggressively looking at lawsuits and working to reach settlements.
In 2016, however, the Trump administration declined to weigh in on motions, including Robles vs. Domino’s Pizza.
Both the Senate and the House of Representatives wrote to the DOJ. But they received letters in return that Congress was expected to tackle these regulations. It was confirmed that the ADA covers websites, and left at that.
During this time, ADA lawsuits skyrocketed quickly. There was an explosion in cases from 2017 to 2018. This resulted in a 181% increase in the number of federal court filings.
Cases have increased ever since. The filings in New York took the lead, followed by Florida and California. California had a huge number of state lawsuits, but were third in federal suits.
ADA Title III Federal Lawsuit Filings Hit an All Time High
The number of ADA Title III lawsuits filed in federal court in 2020 dipped slightly under 11,000. It has come roaring back in 2021. There were at least 11,452 federal filings last year. An all-time record since we started keeping track in 2013 when there were only 2,722 suits. That’s a 320% increase in eight years.
Total Number of ADA Title III Federal Lawsuits Filed Each Year: January 1, 2013 – December 31, 2021
Source: Seyfarth Shaw
What do the numbers tell us?
California remains a lawsuit hotbed. This is because plaintiffs can add a state law discrimination claim under the Unruh Act. They can get $4,000 in statutory damages for every incident of discrimination without even having to prove an actual injury.
The 5,930 California filings accounted for just over half the total number of filings nationwide. New York was a distant second, with 2,774 lawsuits, and Florida was third, with only 1,054 lawsuits. In short, there were more ADA Title III suits filed in California than in all other 49 states combined.
California, New York, and Florida ADA Title III Federal Lawsuits (2013-2021)
Source: Seyfarth Shaw
Top Ten States with Federal ADA Title III Lawsuits Filed: January 1, 2021 – December 31, 2021
Source: Seyfarth Shaw
ADA Related web accessibility lawsuits in California
Robles v. Domino’s Pizza (2019)
In 2019, the Robles v. Domino’s Pizza case was reviewed by the Ninth Circuit. The court held that the ADA applied to all websites and mobile apps. The court reversed an earlier motion on primary jurisdiction grounds.
The courts rejected the primary jurisdiction argument, saying it was the court’s job to fill in gaps in the lawsuit. The court declared that Domino’s was aware of the Americans with Disabilities Act and failed to make its website accessible.
California Appellate Court Holds Web Access Claims against Web-Only Businesses Fail Under ADA and Unruh Act
On August 1, the California Court of Appeal, Second Appellate District, issued a decision. It held that websites without any connection to a physical place of business are not “places of public accommodation” under Title III of the Americans with Disabilities Act.
Martinez vs. COT’N Wash Inc.
A plaintiff with a vision impairment sued a company selling cleaning products exclusively through its website. The defendant was not alleged to operate any physical stores. The plaintiff alleged that the defendant’s website was not accessible to him. It is an alleged violation of Title III of the ADA, asserted as a single claim under the Unruh Act. There were no viable grounds for removal, and the case proceeded in California state court.
Martinez presented to the Court of Appeal whether a website is itself a “place of public accommodation. But the Court of Appeal, after a thorough analysis, joined the Ninth Circuit. It held that a “place of public accommodation” must be a physical place. The defendant was not subject to Title III of the ADA. Since it operated online only and did not have any connection to a physical store.
What makes California Different?
California is becoming one of the most active legal spaces when it comes to Website accessibility. And that’s due to a number of different factors. Let’s look at each.
State Digital Accessibility Laws
California Assembly Bill AB 434
The California AB 434 law requires websites of all state agencies and entities to be accessible to users of all abilities. Specifically websites must conform (at minimum) to Level AA of the Web Content Accessibility Guidelines (WCAG) 2.0.
It requires the agency’s Directors to biennially post a signed certification form on their website. The form must confirm that the agency’s website complies with Government Code Section 7405, 11135, and WCAG 2.0 Level AA guidelines.
The Director should also provide leadership and support for digital accessibility compliance within the organization as a whole.
Under the California AB 434 law, state agencies working in California need to achieve a level of conformance. This makes sure that their website doesn’t have accessibility issues such as poor colour contrast ratio and keyboard traps. It specifically applies to only state agency websites, and not private businesses.
California’s Unruh Act
California’s Unruh Act is a major driver in what makes the state’s accessibility lawsuits different from the rest.
If one files a lawsuit in the state court and alleging violation to the ADA. The defendant could remove the case to federal court, because ADA is a claim against a federal law.
With California’s Unruh Act, however, any ADA violation also violates the Unruh Act, which is state mandated. As a result, the plaintiff’s attorneys will agree that they’ve violated the Unruh Act. This is to avoid the case from continuing on to the federal court and driving up litigation costs and attorney’s fees.
California’s Consumer Privacy Act (CCPA)
In California, the CCPA requires businesses allow their customers to know how they’re using their personal information. This includes the information the business has gained access to, including their name, email, and shopping history.
The CCPA includes a clause that requires businesses to ensure that their internal and external privacy policies are “reasonably accessible” to those with disabilities. This information should comply with the Web Content Accessibility Guidelines (WCAG) 2.1 Level AA.
California Government Code Sections
There are three interrelated government code sections that inform state policy on digital accessibility.
California Government Code Section 11546.7 – State Agency Website Compliance
It requires the agency’s Directors to biennially post a signed form on their website. The form confirms that the agency’s website complies with Government Code Section 7405, 11135, and WCAG 2.0 Level AA guidelines.
California Government Code Section 7405 – Electronic and Information Technology
Government Code Section 7405 directs state governmental entities follow Section 508 of the federal Rehabilitation Act. The Act requires accessibility of electronic and information technology.
California Government Code Section 11135 – Discrimination
Section 11135 gives people with disabilities the right to full and equal access to the benefits of any program or activity. The program or activity is either administered by the state, or receives financial assistance from the state.
A new law targets frivolous disability access lawsuits in the state of California.
California Governor Jerry Brown signed into law a bi-partisan measure that seeks to curb frivolous ADA lawsuits in the state.
This is good news for California businesses. The state reportedly has 12 percent of the country’s disabled population, but 40 percent of the nation’s ADA lawsuits.
State Senator Bob Dutton (R-Rancho Cucamonga) introduced the measure (SB 1186) together with Senate President Pro Tem Darrell Steinberg (D-Sacramento).
”The new law addresses a serious problem, where unscrupulous attorneys are filing shakedown lawsuits against businesses in an effort to gain an easy payday with no intention of improving access for the disabled community.”State Senator Bob Dutton (R-Rancho Cucamonga)
Federal Digital Accessibility Laws
Federal requirements are set forth in Section 508 of the Rehabilitation Act.
The Americans with Disabilities Act
The Americans with Disabilities Act (ADA) is a federal civil rights law that prohibits discrimination against people with disabilities in everyday activities. It guarantees people with disabilities the same opportunities as everyone else.
Section 508 of the Rehabilitation Act – Electronic and Information Technology
In 1998, Congress amended the Rehabilitation Act of 1973. It requires Federal agencies to make their electronic and information technology (EIT) accessible to people with disabilities.
Section 508 was enacted to eliminate barriers in information technology, open new opportunities for people with disabilities, and encourage development of technologies that will help achieve these goals.
The law applies to all Federal agencies when they develop, procure, maintain, or use electronic and information technology. Under Section 508, agencies must give disabled employees and members of the public access to information that is comparable to access available to others.
Web Content Accessibility Guidelines
The World Wide Consortium (W3C) has created the Web Content Accessibility Guidelines which defines the list of accessibility standards. The guidelines are classified under 4 principles: perceivable, operable, understandable, and robust.
How codemantra helps state agencies achieve compliance?
codemantra helps state, local and federal governments comply with WCAG 2.0, ADA, Section 508 mandates. These require your websites and digital documents like PDF’s to be equally accessible to all users, especially ones that are visually Impaired.
Our AI-powered platform accessibilityInsight offers scalable modules for robust compliance reporting and validation across all document types as per WCAG 2.1 standards.
The platform helps to auto-remediate documents as per ADA, WCAG 2.1 Level AA, and Section 508 standards to achieve compliance at scale. It also allows users to perform interactive remediation as needed.
We have worked with several California state agencies to help them with their remediation strategies with a very cost-effective solution.
Interested to know more?
Call us at 1 (800) 769-9715. Email: email@example.com for more information on how state agencies can achieve compliance as per state and federal accessibility laws.
Visit the link to book a demo session: