Website Accessibility Update: You can be Held Liable for a Third-Party’s Lack of Accessibility

It is becoming increasingly clear that San Diego and California businesses are required to make their websites accessible to the blind and others with visual impairments. The recently decided case of Thurston v. Midvale Corporation, Case No. B291631 (Cal. App. 2nd Dist. September 3, 2019) is one of several California cases to deal with website accessibility. The Thurston case is the strongest case to date mandating the legal requirement that business websites be accessible. The Thurston case held that a restaurant’s website violated the federal Americans With Disabilities Act (“ADA”) and also the California Unruh Act. Of note and of legal importance, the restaurant at issue was held to be liable even though the reservation service was actually handled through a third-party webservice. This heightens the danger to San Diego businesses. Legal issues with respect to website accessibility should be considered with setting up network service, maintenance and security contracts, and if/when you are considering a merger or acquisition. The advice and counsel of an experienced San Diego corporate attorney is essential.

The website at issue related to a Los Angeles restaurant called The Whisper Lounge. The plaintiff — Cheryl Thurston — is blind but is still able to access many parts of the internet with a screen reader software. The software vocalizes invisible code that must be embedded in the website. In this manner, the vocalization gives a blind person a description of graphics and text allowing the information to be obtained. Thurston tried to obtain information about The Whisper Lounge, but its website was not designed with the embedded coding. Thus, she was unable to obtain any of the information that a sighted person would be able to obtain. She sued for violation of the ADA and the Unruh Act. In general, if a website is used to drive traffic to a physical location, then the ADA and the Unruh Act apply and the website must not discriminate against those with disabilities.

In response to the lawsuit, the restaurant offered several arguments. First, the restaurant suggested that there was no violation of the statutes because the website listed a telephone number for customers to use. The restaurant argued that this was a “reasonable accommodation” that satisfied the legal requirements. However, Thurston claimed that she was unaware the website listed a telephone number because she could not see the telephone number and it was not vocalized in any manner. Further, she also stated that having to call — when sighted persons do not have to call — is still discrimination. Further, online information is quicker and provides a certain level of privacy. The trial court agreed with Thurston and the Court of Appeals affirmed. The court agreed with Thurston’s points above and added that the website’s reservation system was accessible 24 hours per day to those who can see, while phone communication is limited to the hours of operation. This was determined to be discrimination under the relevant statutes.

The restaurant also attempted to avoid liability by arguing that its reservation web services were provided by a third-party vendor. According to The Whispering Lounge, the third-party vendor was the party responsible for providing website accessibility. This argument was forcefully rejected. That Court of Appeal stated there was “… no legal support for [the] theory that [a business] cannot be liable for ADA discrimination if hires someone else to do the discrimination.” This is a new interpretation and means that businesses must begin ensuring that their service providers are building and maintaining their websites in compliance with the ADA and the Unruh Act.

One other interesting aspect of the case was the court’s discussion of what are called the Web Content Accessibility Guidelines (“WCAG”). The WCAG is a privately created and maintained set of guidelines for how to make — and keep — a website accessible for the visually impaired. At the trial level, The Whispering Lounge was ordered by the trial court to use the WCAG guidelines to modify and update its website architecture. On appeal, the restaurant argued that this part of the trial court’s order impermissibly imported the WCAG guidelines into California law. This argument was rejected. The court reasoned that some guidance is needed for the court and for businesses. However, businesses were free to offer alternative standards than those provided under the WCAG.

Contact San Diego Corporate Law

For more information, call Michael Leonard, Esq., of San Diego Corporate Law. Mr. Leonard focuses his practice on business law, transactional, and corporate matters, and he proudly provides legal services to business owners in San Diego and the surrounding communities. Mr. Leonard can be reached at (858) 483-9200 or via email. Like us on Facebook.

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