As in-house counsel, the Americans with Disabilities Act (ADA) is a law that may have been brought to your attention. If so, it likely would have been in relation to the ADA’s strict design requirements for physical access to businesses open to the public. You are less likely to be aware of the court-led expansion of that law to include reasonable efforts to make a business’s website accessible for visually impaired customers. ADA website claims tend to get less press because of the ADA’s inherently limited remedies. When a lawsuit is filed under the ADA, the plaintiff is limited to injunctive relief and attorney fees. One way to defeat these claims is to remedy the impediment to access, which generally moots the claim. As you may suspect, a website can be modified faster than a physical premises. But that ability to modify a website faster than a physical premises also means that an initially accessible website can become inaccessible—unintentionally—through incremental changes over time. This is not something that most physical locations, like restaurants and retail stores, experience. Accordingly, a website’s malleability has historically made these suits less lucrative for plaintiff’s firms, and thus less common.

However, a number of states have their own disability statutes, oftentimes borrowing the ADA’s framework and adding statutory damages into the mix. Over time those states have increased the scope of their statutes, coincidingly increasing the number of suits filed by plaintiff’s firms. For example, California’s Unruh Civil Rights Act (Unruh) guarantees the greater of $4,000 or actual damages for a proven violation of the ADA. While no California court or jury has found actual damages to exceed $4,000, businesses cannot moot these claims by modifying their websites. Accordingly, plaintiff’s firms have taken to suing under Unruh for monetary damages, which are all but guaranteed in the case of a technical violation, and the attorney fees that accompany them.