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How ADA compliant is your website? Digital accessibility lawsuits rise in California

Pat Needles is vice president of Equidox PDF Accessibility Solutions, an Ohio-based firm that specializes in helping organizations make their PDFs accessible for individuals with visual and other disabilities.

Most of us instinctively reach for our smartphones to answer countless daily questions via the internet. From looking up a recipe to accessing our banking information, it’s become second nature at home and work. The pandemic cemented the internet as a necessity.

However for too many, a digital divide remains. Efforts are being made to bridge the most well-known gaps, such as the Biden Administration’s plan to invest billions of infrastructure dollars to ensure Americans in rural and lower-income areas enjoy the same quality broadband access as elsewhere. But it is just as important that public and private organizations ensure available information is accessible to all users, including those with disabilities.

For those using assistive technology (such as screen readers or connected Braille displays), a simple 10-minute task can take hours to complete if the website, mobile app, or PDF document is inaccessible to them. This includes things like poor color contrast, unlabeled links and buttons, images without alt text, untagged PDFs, and uncaptioned videos, among other things. This applies to websites, email, social media communications and PDF documents, of which there can be hundreds or thousands on any given website.

Correcting these defects makes a website and digital resources more accessible to all. This goes beyond mere courtesy. That’s because the Americans with Disabilities Act (ADA) and California’s Unruh Civil Rights Act not only provides protection from discrimination by all business establishments in California, but it also requires all organizations that do business in California to make their websites and files accessible to all California residents, regardless of whether or not the organization is based there.

When digital resources are not accessible, people with disabilities often have no recourse but to file lawsuits under the ADA and Unruh. As a result, digital accessibility lawsuits have increased dramatically over the past few years.

Digital Accessibility Lawsuits

More than 4,000 digital accessibility lawsuits were counted across the country in 2021 (an 15% increase over 2020), including those filed in California under the Unruh Act with a direct reference to violation of the ADA. In fact since 2013, more digital accessibility lawsuits have been filed in California than in any other state (5,930), with many plaintiffs under Unruh seeking damages. And as of July 2022, more than 500 digital accessibility lawsuits have already been filed in California this year alone.

Kristina Launey, a litigator at the law firm Seyfarth Shaw, surmises that the Unruh Act contributed to the high number of filings in the state. Under the ADA, a plaintiff can sue for an injunction to require a business to bring a public accommodation into compliance, but cannot recover money from the defendant other than repayment of reasonable attorneys’ fees and costs. However, California plaintiffs can bring the same suit at the state level under Unruh and recover a minimum of $4,000 per violation, in addition to attorneys’ fees and costs.

Even when such cases are settled out of court, costs can add up. Many digital accessibility cases become class action lawsuits, which allows compensation for each member of the class. A class action digital accessibility suit against California-based online coupon app Honey cost the company over $50,000. Eric Wu, VP of product growth at Honey, said, “In this case, the fine was $200 per person impacted. The legal team who filed the lawsuit claimed that 250 people were impacted.”

California’s Efforts to Improve Accessibility

It should be noted California state agencies have made strides to adhere to Section 508 of the federal Rehabilitation Act of 1973. This mandates all federal agencies make any electronic and information technology accessible to people with disabilities. Under California Government Code Section 1135, information technology created or used by state government agencies must also be fully accessible. The state took things a step further with CA-AB 434 (2017), which requires all California agencies, including state-funded healthcare systems and educational institutions, to become compliant with WCAG 2.0 Level AA and Section 508. Additionally, agencies needed to post a certificate confirming accessibility on their website by July 1, 2019. WCAG has been updated since then to 2.1, but 2.0 is what the law currently calls for– and this includes PDF accessibility.

Several California health agencies, colleges, and California state government agencies use Equidox’s PDF accessibility software to help employees quickly remediate new documents. They all recognized the need for their website and the PDF documents found there to be accessible and ADA compliant.

Accessibility is an opportunity

Private companies have been slower to proactively address digital accessibility issues. Companies damage their bottom line by not complying with ADA regulations. The ADA requires organizations make all of their “places of public accommodations,” including websites, accessible to everyone.

But beyond responding to regulations and litigation, digital accessibility affects customer experience, companies’ market share, and meeting their corporate social responsibility goals. For example, 25% of the population currently identifies as having a disability, and many of us will age into disability as time passes. Accessibility also helps those experiencing situational or temporary disabilities, such as injuries, which may affect how a person accesses information digitally.

A 2018 report from the American Institutes for Research (AIR) – A Hidden Market: The Purchasing Power of People With Disabilities – found that “the total after-tax disposable income for working-age people with disabilities is about $490 billion, which is comparable to that of other significant market segments, such as African Americans ($501 billion) and Hispanics ($582 billion).”

This all underscores how more than ever accessibility is as necessary as proper grammar. It would be embarrassing and damage your organization’s reputation if you published content full of grammatical errors. But unlike poor grammar, inaccessible documents can land you in court. Ensuring digital accessibility not only helps organizations become compliant, but also expands your market and helps everyone participate in the ever-changing digital world.

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