Articles Posted in Compliance

The digital age has transformed how businesses interact with customers, but with this shift comes heightened legal exposure under the Americans with Disabilities Act (ADA) and Unruh Civil Rights Act. Website accessibility lawsuits now account for a substantial percentage of all ADA Title III claims in recent years—a trend fueled by plaintiffs’ attorneys targeting businesses with inaccessible online platforms. As courts increasingly recognize websites as “places of public accommodation,” compliance is no longer optional—it’s a necessity.

Drawing from our experience defending clients in high-stakes ADA litigation, including a landmark victory for Marriott in which the Court required the plaintiff to pay Marriott for filing frivolous litigation, this article outlines critical compliance strategies to mitigate risk and foster inclusivity.

The Legal Landscape: Why Websites Are Under Fire

When facing a lawsuit under The California Unruh Civil Rights Act or Title III of the Americans with Disabilities Act (ADA), businesses and property owners should be aware of potential legal defenses that may be available to them. The law mandates that public accommodations (i.e., most businesses open to the public) be accessible to individuals with disabilities. Violations can lead to costly lawsuits and legal battles. However, there are many available defenses that defendants can raise to win lawsuits or mitigate liability. Here are a few of the most common legal defenses to consider (although there are others that you should discuss with your attorney):

1. No Ownership, Operation or Control (Incorrect Party)

First, businesses and landlords are often incorrectly named in accessibility lawsuits. However, a business or landlord cannot be liable for property or website conditions that it does not own, operate or control. For example, a tenant cannot be held liable for areas of a parking lot that it does not lease and cannot legally alter. This often occurs in large shopping centers. JMBM was responsible for setting precedent in this area at the 9^th Circuit Court of Appeal in the case Kohler v. Bed Bath & Beyond of California, LLC (2015) 780 F.3d 1260 (Case No. 12-56520). You must first determine if the correct party was named in the lawsuit.

2. Compliance or Equivalent Facilitation

Sometimes plaintiffs file lawsuits alleging that there are “barriers to access” (i.e., violations) that do not exist. For example, businesses open to the public are generally required to provide an accessible entrance. But not every entrance needs to be accessible. A plaintiff might allege that the property lacks an accessible entrance not realizing one exists on the other side of the building. Certain serial Unruh plaintiffs now often file lawsuits alleging that a website is inaccessible to them as blind users. They or their counsel use automated testing tools, such as the WAVE Tool or Axe, to test the website for accessibility compliance. However, these tools are notorious for producing false positives – apparent violations that are not actual barriers and don’t violate the law. Therefore, it is important to assess the merits of the claims. There are many detailed, technical rules regarding the dimensions, slope, position, color, contrast and other aspects of accessible facilities. Thus, it is crucial to be familiar with the ADA standards and relevant rules in this area before making a determination about liability.

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In a recent decision by Judge William H. Orrick, the court reviewed a website for compliance with the Americans with Disabilities Act (ADA) and found that minor imperfections on a website that do not meaningfully hinder access to the business are insufficient to constitute ADA violations. Gomez v. Trinitas Cellars LLC, Case No. Case No. 3:21-cv-09006-WHO, Doc # 37 (N.D. Cal. June 17, 2022.

The ADA was passed into law in 1990, well before the popularization of the internet. Since then, of course, the internet has become an inescapable part of everyday life in America. The ADA, however, contains no mention of the internet. The closest it gets are generalized principles requiring businesses to provide “auxiliary aids and services” and ensure “effective communication.”

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Many hotels are not aware that the ADA imposes several requirements during the reservations process, including posting descriptions of the hotel’s physical accessibility features on its online reservations system.  Starting around early 2018, serial ADA plaintiffs have filed significantly more lawsuits against hotels regarding this issue.

In addition to the many physical accessibility requirements at places of lodging (hotels), such as accessible parking and accessible guest rooms, the ADA also requires places of lodging to take certain actions during the reservations process to help individuals with disabilities obtain an accessible guest room.  Specifically, places of lodging are required to do the following:

• Ensure individuals can reserve accessible guest rooms in the same manner and time as other guests;
• Provide descriptions of accessible features of the hotel and guest rooms as part of any reservations process (such as website booking);
• Ensure that the hotel’s accessible guest rooms are held for individuals with disabilities and not rented out to those not requesting an accessible room (unless all non-disabled rooms have been booked); and
• Once reserved, ensure that the accessible guest room is hard booked and not rented to anyone else.

These requirements derive from 28 C.F.R. § 36.302(e)(1), which is provided in full below.

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