Predatory Litigation Target: Your Website
August 15, 2017
by
Susan S. Waag

Susan S. Waag

California businesses are under a growing assault from “predatory litigation” — litigation that does little more than line the pockets of plaintiffs’ lawyers. The latest trend in this area involves claims that a company’s website is not accessible to visually- or hearing-impaired users. Most businesses are not even aware of this issue. Many major retailers (Macy’s, Costco, Toys ‘R’ Us, CVS, Staples…) have either paid out 7-figure settlements or are currently defending class action lawsuits alleging that their websites discriminate against disabled users. The obvious solution, of course, is to make your websites accessible to everyone; the problem, however, is how best to do that.

Not a Quick Fix

Making your online presence accessible to those with visual, hearing or other impairments involves a complexity of details. For example, care must be taken to ensure there is text accompanying each graphic, so that text-to-audio software can be utilized. Similarly, if your website has audio content, that content must be accessible to users with hearing impairments. Other disabilities present other accessibility issues. It comes as no surprise that providing access to impaired users requires experienced and highly skilled Internet technicians.

Everyone’s a Target

LightGabler attorneys have observed recent predatory-litigation attacks alleging inaccessible websites on businesses — even on those with just a small e-commerce presence. The biggest targets for website-accessibility lawsuits are retailers, hotels, restaurants, and the like, but every business with a website is at risk.

California businesses are most frequently targeted, since the State provides additional avenues for claims, such as California’s Unruh Civil Rights Act. “Unruh” fines are up to four times higher than those available under the federal Americans with Disabilities Act (“ADA”), and plaintiffs can add on attorney’s fees and damages to that as well. This may explain why more disability-access lawsuits are filed in California each year than in any other state.

Legal Standards Unclear

Currently, there are no legally-adopted laws or regulations regarding website accessibility. Most of the lawsuits filed claim that business websites are “inaccessible” because they fail to follow guidance from an international website standards organization, the World Wide Web Consortium (“W3C”). W3C published version 2.0 of its Web Content Accessibility Guidelines (“WCAG 2.0”) in 2008, which can be found here: https://www.w3.org/TR/WCAG20/ . There is currently a draft of WCAG 2.1, which has not yet been officially released, but can be found here: https://www.w3.org/TR/WCAG21/ . It is generally believed that some version of the WCAG will ultimately be adopted as the legally-applicable standard, but nobody knows if or when that may happen. Until then, businesses just have to do the best they can.

Where Have We Seen This Before?

Just a few years ago, California businesses were hit by a rash of “drive-by” disability-access lawsuits. Typically, a small handful of “plaintiffs” would canvass strip malls and restaurants looking for tiny technical violations of the law (after all, nobody’s perfect). Examples from real lawsuits: a bathroom mirror being an inch too high; faded blue paint marking a disabled-access parking spot; a clothing store’s racks being too close together. The more violations, the more fines to be threatened. These minor oversights on business property resulted in demand letters from attorneys insisting on thousands of dollars in settlements for matters that would take only a few dollars to fix. The California Commission on Disability Access reported that 54% of all such “construction-related barrier” accessibility claims from 2012 to 2014 were brought by just two law firms, and 46% of all suits during that period were brought by only 14 plaintiffs. The clear implication was that the suits were never intended to remedy inaccessibility, but only to make money.

SB 269 Tames Construction-Related Claims Only

As the abusive demands of the “plaintiffs” piled up, in May 2016, Governor Brown signed SB 269, which was intended to curb predatory litigation (i.e., extortion) through disabled-access litigation. This law provides a short grace period for businesses to correct any barriers to accessibility before they could be sued. However, SB 269 only applies to construction-related barrier claims; accessibility of websites remains fair game for predatory law firms and “professional victims.”

Testing Your Website’s Accessibility

You can get a rough idea of how accessible your current website is by running an accessibility scan using a free on-line tool, such as www.wave.webaim.org (this is just one of many available; LightGabler does not endorse or verify the accuracy of any particular accessibility tool). Such sites can give you a general picture of your website’s accessibility (but nothing legally conclusive). So while such tools may be informative, they should not be relied upon as the final word on your website’s legal accessibility (again – no legal standards really exist).

Recommendations

LightGabler recommends that businesses train their website development staff (or hire an outside tech firm with accessibility expertise) to promptly make their online presence accessible to users with visual and hearing impairments, as well as any other changes to attain maximum accessibility for disabled users. This should reduce your attractiveness as a target, and may reduce the cost of any possible litigation. The good news is that it also may (incidentally) increase the amount of business generated through your website.

As another line of defense, we advise businesses to immediately check with their insurers to see if website-accessibility claims are covered. This is especially important, given the current uncertainty of any legal standards that would apply.

Conclusion

Certainly, society benefits when individuals with disabilities have the same access to employment, shopping and services as do others. However, predatory lawsuits that amount to little more than extortion threaten the ability of legitimate advocates to achieve meaningful accessibility improvements. LightGabler is available to assist businesses in discussing ways in which you can protect your company.

Susan S. Waag is an employment law attorney at LightGabler. Based in San Luis Obispo, Susan provides advice to employers of all sizes on problem prevention and compliance with the myriad of laws impacting California businesses.