California’s Unruh Civil Rights Act allows plaintiffs to sue for statutory damages of up to $4,000 per offense. Any violation of the Americans with Disabilities Act (ADA) constitutes a violation of the Unruh Act — which is one of the reasons that California is a hotspot for web accessibility lawsuits.
According to the Department of Justice (DOJ), Title III of the ADA applies to online content. When websites have barriers that affect users with disabilities, they’re targets for litigation under both the ADA and the Unruh Act.
That may be true regardless of where your business is headquartered. If your business promotes or sells products in California, you should take steps to ensure compliance with the Unruh Act, particularly if you sell a large number of products within the state. Here’s why.
Thurston v. Fairfield: A Landmark Case for Unruh Act Lawsuits
The relevant precedent was established in Thurston v. Fairfield Collectables of Georgia, LLC. Fairfield Collectables is a Georgia-based business that sells vehicles online. At the time of the lawsuit, Fairfield had no employees in California and did not operate a brick-and-mortar establishment in the state.
The plaintiffs, Cheryl Thurston and Luis Licea, alleged that Fairfield’s website was inaccessible with a screen reader. Thurston, who has a vision disability, said that she was unable to use the website to browse products or place orders. The defendants immediately filed a motion for dismissal, claiming that they did not have sufficient contacts with California.
The California Court of Appeal ruled that Fairfield’s California sales were substantial enough to qualify as purposeful availment, a legal term for an intentional act in which a party (Fairfield) enjoys the benefits of the laws of the state.
According to the opinion, the Unruh Act applied to Fairfield for several reasons:
Californians made up about 8-10% of the company’s consumer base.
Fairfield averaged around $350,000 in sales to California customers per year.
Fairfield could have opted to refuse service to California customers.
"[The] defendants have purposefully derived a benefit from their Internet activities in California , and have established a substantial connection with California through their Web site,” the court wrote. “In doing so, defendants have purposefully availed [themselves] of the privilege of conducting business in California via the Internet.”
Related: Dozens of Wineries in Northern California Face Web Accessibility Lawsuits
Plaintiffs do not need to purchase products to file a lawsuit
It’s also important to note that Thurston didn’t purchase anything from Fairfield. Under the Unruh Act, plaintiffs must prove that accessibility barriers deny them equal access to products or services — but plaintiffs may make that argument without actually attempting a purchase.
Other important facts about the Unruh Act:
The Unruh Act is not specific to disability status. It outlaws discrimination based on many other individual characteristics including gender, religion, sexual orientation, and genetic information.
To be awarded statutory damages, plaintiffs must prove that discrimination was intentional, unless the alleged action constitutes a violation of the ADA.
Per a recent ruling, the Unruh Act may not apply to online-only businesses. However, it applies to any business with a brick-and-mortar establishment.
Related: California's Unruh Civil Rights Act and Digital Accessibility: An Overview
Creating a Digital Accessibility Strategy for Unruh Act Compliance
Neither the ADA nor the Unruh Act contain technical standards for websites or mobile apps. However, the Justice Department recommends evaluating content against the Web Content Accessibility Guidelines (WCAG), which are widely considered to be the international standards for accessibility.
To reduce your legal risks — and market your products more effectively to the 26% of Americans who live with disabilities — take the following steps:
Test your content against WCAG’s Level A/AA standards. Use a combination of manual and automated tests to find barriers that may affect users with disabilities.
Create a remediation strategy. If possible, focus on high-impact barriers first, which are addressed in WCAG as Level A success criteria. Read more about WCAG conformance levels.
Publish an accessibility statement. An accessibility statement outlines the steps you’ve taken to accommodate your users and identifies any known barriers.
Make a commitment. Don’t assign digital accessibility to a single member of your team — build the best practices of inclusive design into your business practices.
An experienced accessibility partner can help you create a sustainable strategy for digital compliance. Talk with our subject matter experts (SMEs) to learn more or get started with a free automated web accessibility analysis.