California Businesses: Are Your Websites ADA, Unruh Act, and DPA Compliant?
Nearly every successful business has a website and an internet presence. Arguably, no business can succeed in today’s competitive marketplace without a web presence. Recent case law and legal trends demonstrate that businesses must now consider whether their websites are compliant with the Americans With Disabilities Act (“ADA”), California’s Unruh Civil Rights Act (“UCRA”), and the California Disabled Persons Act (“DPA”).
Compliance issues are going to become important in starting new businesses, expanding websites, and buying and selling businesses.
The ADA, the UCRA, and the DPA prohibit discrimination in “place[s] of public accommodation.” There is an ongoing debate about whether websites are, in and of themselves, “place[s] of public accommodation.”
Under current California law and Ninth Circuit law, that question has been answered in the negative because websites are not actual physical places. Young v. Facebook, Inc., 790 F.Supp.2d 1110 (N.D.Cal.2011) (dismissing ADA claim against Facebook because it operates only in cyberspace); Earll v. eBay, Inc., No. 5:11-CV-00262-JF HRL (N.D.Cal. Sept. 7, 2011) (holding that eBay’s website is not a place of public accommodation under the ADA); Cullen v. Netflix, Inc., 880 F. Supp. 2d 1017 (N.D. Cal. 2012) (Netflix had no physical location; ADA, UCRA and DPA claims dismissed).
However, if your business operates from a physical space and uses the internet to “drive traffic,” then your website might need to be ADA, UCRA, and DPA complaint. The leading case is Nat’l Fed’n of the Blind v. Target Corp., 452 F.Supp.2d 946, 952 (N.D.Cal. 2006). In that case, various visually-impaired individuals and advocacy groups sued Target, claiming that its website, Target.com, was not accessible to the blind, violating the ADA and California statutes. The federal court agreed, holding that the plaintiff could proceed with their claim.
The court so held in large part because the website was an integral part of Target’s physical stores and was intimately tied to its marketing. The court found several facts to be important including:
- Target is a large company, operating over 200 stores in California
- Target.com was interactive in that a customer could order products online and then pick up the products at local stores
- Products online were nearly the same as the products available in the physical stores
- Target.com encouraged online ordering of prescriptions refills (which were then picked up at the local store)
- Target.com allowed coupons to be printed that could then be redeemed at the stores.
- Photos could be ordered online and then picked up at stores
The court further noted facts about Target’s ability to comply including:
- Accessible websites rely on invisible coding embedded beneath graphics allowing a blind person to use a reader that vocalizes the content and allows keyboard navigation rather than mouse-clicking
- Redesigning a website to include the invisible coding is technologically simple
- Adding the invisible coding is not cost prohibitive (at least for a company the size of Target)
Under these circumstances, the court allowed the plaintiffs to proceed with their lawsuit.
Lessons for California Businesses
As noted, almost every business operates a website and almost every business uses its website to drive traffic to its physical offices or stores.
Therefore, web accessibility and compliance must be considered if you start a new business, add a website to an existing business, or expand your web presence. Moreover, when buying or selling a business that has a website, web accessibility should now be considered. For example, if you are preparing for a private sale of an existing business, a possible website upgrade should be added to the list of due diligence items. Moreover, the purchase price offered might need to factor in the potential cost of any needed upgrade to the website to comply with the anti-discrimination laws.
Businesses are also advised to check with their insurance broker to make sure that the website is covered for all issues of legal liability.
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