Date: December 11, 2019
By: Kyla Christoffersen Powell & Ling Ling Chang
Source: Orange County Register
With a number of new landmark laws going into effect January 1, California’s businesses face heavier burdens than ever before. Businesses, both small and large, are struggling to comply with policies such as the California Consumer Privacy Act and Assembly Bill 5, the codification of the California Supreme Court’s Dynamex decision.
Yet another issue looming large for business owners is a resurgence of shakedown lawsuits under the Americans with Disabilities Act (ADA) lawsuits – this time over website violations.
The ADA was enacted in 1990 to prohibit discrimination against accommodations for people with physical or mental disabilities – a laudable goal. Unfortunately, it has too frequently been used by profit-seeking plaintiffs’ lawyers to shake businesses down with money demands under threat of lawsuits over minor technical violations, such as a disabled parking sign that has faded to the wrong shade of blue, or a door sign hanging slightly too high or low.
Now we are seeing a similar abusive litigation dynamic for businesses with an online presence. The absence of clear rules on website accessibility is open season for plaintiffs’ lawyers to exploit the ambiguities with lawsuits alleging violations of an amorphous standard. Between 2017 and 2018, website lawsuits filed in federal court under the ADA increased by 177%.
This staggering increase has led us co-host a number of public workshops aimed at helping small local business owners understand how best to comply with ADA requirements, including with their websites. By equipping local business owners with the information they need, they achieve better compliance rates and are better positioned to protect against being sued. Unfortunately, without clear rules for website accessibility, compliance is a guessing game and businesses remain exposed to lawsuits.
This was the case for a local hamburger restaurant in Anaheim who was sued on the basis that its online food delivery platform was allegedly not accessible. Today, this small restaurant is facing huge legal fees and an expensive settlement. Without clear regulations, businesses like this have no way to protect themselves.
Regulators have stated that “effective communication” must be provided to those with disabilities but have not clearly defined what it means. These ambiguities are further complicated by the fact that communications disabilities are very individualized, creating a moving target for compliance. The U.S. Department of Justice needs to establish clear standards so that businesses have certainty when they take steps to comply.
The cost of making a website compliant is also an important factor that regulators should consider, particularly for small businesses. The cost of an effective audit on a website can run anywhere from $7,000 to $50,000 dollars depending on the complexity of the site. This does not include the costs of continually updating the website for compliance. These mounting costs can be ruinous for some small businesses who end up closing their doors.
We need to use the law to punish bad actors, not run honest mom and pop shops out of business. Without clear rules, businesses will continue to see shakedown lawsuits that take advantage of this ambiguity. Establishing fair and reasonable rules will ultimately promote adoption of accessible websites under the ADA, which benefits consumers with disabilities and businesses alike.
Senator Ling Ling Chang represents the 29th State Senate District. Kyla Christoffersen Powell is the president and CEO of the Civil Justice Association of California, an association which advocates for balance in the legal system on behalf of employers, businesses, and Californians who are negatively impacted by our current legal climate.