It’s an all too common call that Utah lawyers are fielding – a business owner calls about a letter she received from a California lawyer. The letter claims that the business is illegally discriminating against the lawyer’s visually impaired client because the client is not able to read the business’s website in violation of the California Unruh Civil Right Act. The letter also demands payment of $75,000 to avoid trial where, the lawyer warns, damages will be much higher. Because the letter references disability, discrimination and civil rights, many business owners contact or are routed to their employment lawyers who have advised them on these types of issues in the past. Usually, the business owner is calling for confirmation that the demand letter is a scam that can be discarded. Unfortunately, we have to explain that the business may have a problem. The rest of the exchange goes something like this.
What is the California Unruh Civil Rights Act?
The California Unruh Civil Rights Act (“Unruh”) is the California equivalent of federal anti-discrimination statutes like Title VII and the Americans with Disabilities Act (“ADA”). Many businesses are surprised to learn that Unruh (like the ADA) requires that websites be accessible to the visually impaired. However, to prevail on a claim of disability discrimination under Unruh (like the ADA) a plaintiff must show that the business operating the website “owns, leases, or operates a place of public accommodation.” Fortunately (and perhaps surprisingly) for web-based businesses, most federal courts, including those in California, have held that a “place of public accommodation” under the law is a “physical space.” Accordingly, because websites are not physical spaces, they are not public accommodations under the ADA and businesses that provide goods and services exclusively through web platforms are not covered by the website accessibility obligations of the ADA. However, if you own a brick-and-mortar store, and have a related website, you are likely subject to the website accessibility requirements of both Unruh and the ADA.
Great News! MY business is a Utah and web-based business with no operations in California.
Unfortunately, in an unusual twist of fate, many California state Courts have adopted a different interpretation of “public accommodations” and concluded that websites are public accommodations even in the absence of a brick-and-mortar location. Because your website is accessible in California, your business can be sued in California state courts for violating the Unruh law you never even knew existed. Hopefully, California state courts will clarify this issue in the future and adopt the majority opinion of most federal courts. However, for now, you would be rolling the dice on whether a California court will consider your website a public accommodation.
Can’t I move the case to federal court, where my website is not a “public accommodation”?
Unfortunately, because the law is more favorable to web-based businesses when in federal court, clever plaintiff’s lawyers draft complaints specifically to avoid federal court jurisdiction. Specifically, the complaints bring only Unruh California law claims and limit the damages to $74,999, because claims of $75,000 or more can be moved to federal court.
But this mistake can’t really cost me $75,000!
Under Unruh, a victorious plaintiff is entitled to an amount equaling three times actual damages with a minimum of $4,000 per incident. There is some question about what constitutes an “incident,” but rest assured the California lawyers sending demand letters to Utah businesses have taken the position that each and every instance in which a visually impaired person is unable to access a website constitutes a minimum $4,000 penalty. That is a scary number when you consider the possibility of one person making ten failed attempts to access your website or one hundred people making one failed attempt to access your website. Unruh also allows for attorney fees.
I haven’t received a letter yet, what can I do?
To avoid being the next target of what is becoming the Unruh California gold rush in Utah, determine if your website is compliant with the Web Content Accessibility Guideline by hiring a web design firm to audit your website and make necessary changes or build a new, accessible website. If you do get a letter, do not ignore it. Instead, contact your attorney as soon as possible – and, if necessary, you can now explain what Unruh is and why you are taking it seriously!
D. Zachary Wiseman is an experienced labor and employment attorney and is monitoring related legal updates for the COVID-19 pandemic. His practice includes labor relations, employment litigation, representation of clients before administrative agencies and commercial litigation. He assists both private and public employers as well as Service Contract Act employers with a wide range of labor and employment issues.
Jessica A. Ramirez is an associate in the Firm’s Employment and Labor Law section. She is a litigator with an emphasis on employment, commercial and immigration law. Ms. Ramirez is an active member of her firm’s Minority Law Group and Women Lawyers Group. She currently serves as the Director of Events for ALPFA’s Salt Lake City chapter and sits on the Board of Directors for the English Skills Learning Center.