2022 saw a stark increase in digital accessibility lawsuits filed in the United States. As per our year-end report, the most litigious state in the nation was New York.
The increase in lawsuits in the Empire State can be best attributed to a high concentration of law firms willing to take on ADA cases. In other words, since there are more lawyers, there will naturally be more lawsuits.
Trailing right behind New York, was the state of California. Although California also has a high volume of firms, this alone doesn’t paint the whole picture of its lawsuit increase.
What has helped California lead ADA suits is local legislation — specifically, the Unruh Act. The Unruh act has, over the years, played a central role in several California civil rights cases, including those related to accessibility and the ADA.
In this piece, we will provide an in-depth explanation of the Unruh Act — from its history to its logistics — and how it applies to ADA cases in California.
The Unruh Civil Rights Act of California was first established in 1959. It gets its name from its author, the late Jesse M. Unruh.
Unruh was a California politician who served in various roles, including the speaker of the California state assembly and California state treasurer. During his time in the state assembly, he authored the act that would bear his namesake. To this day, the Unruh act holds significant influence in the California legal system.
The purpose of Unruh
In the simplest terms, the Unruh Act outlaws the perpetration of discrimination by businesses that offer their services to the public. Individuals may not face discrimination based on gender, race, sexual orientation, or disability. The goal of Unruh is to make clear, in no uncertain terms, the inexcusability of discrimination in California.
These provisions directly relate to subsequent civil rights measures, such as the CRA and ADA, and may have influenced their development.
The contents of Unruh
The Unruh Civil Rights act spans sections 51-52 of the California civil code.
Section 51 outlines the various individuals protected by Unruh and the scenarios where they receive such protections.
Section 52 of the civil code outlines the penalties that would be faced by any violators of the Unruh Act. This section states,
“Whoever denies, aids or incites a denial, or makes any discrimination or distinction … is liable for each and every offense for the actual damages, and any amount that may be determined by a jury, or a court sitting without a jury, up to a maximum of three times the amount of actual damage but in no case less than four thousand dollars ($4,000), and any attorney’s fees that may be determined by the court …”
This is an important passage, so let’s unpack it.
Civil rights cases in California are measured against federal laws and the Unruh Act. Should a defendant be found guilty of violating the ADA, for example, they will also be found guilty of violating the Unruh Act.
Furthermore, violating the ADA incurs penalties in addition to those incurred for violating Unruh. The penalties for an Unruh violation range from a minimum of $4000 to a maximum of three times the amount owed in federal penalties.
Compliance with the Unruh Act
Complying with the Unruh Act requires businesses to make sure that they are taking the necessary steps to ensure accessibility.
Part of this means modifying any physical property a business may own. Such modifications include:
Installing ramps and handrails
Making exits/entrances wide enough to accommodate mobility devices
Creating accessible parking
Businesses should also ensure that their digital products or platforms remain accessible. Due to the precedent set by the Robles vs. Domino’s Pizza case, websites are considered “places of public accommodation.” As such, if a business’s website is inaccessible, they risk facing both an Unruh and ADA violation.
Steps businesses can take to maintain digital compliance with Unruh include the following:
Providing alt-text on images
Ensuring website compatibility with screen readers
Using legible color contrast ratios
Offering audio description on video content
Despite its intentions and positive results, the Unruh act is not without its issues. For one thing, business owners and defense attorneys fear the nature of Unruh’s penalties, coupled with vague accessibility legislation, leave room for opportunistic attorneys or plaintiffs to take advantage.
In California, penalties owed for ADA violations must be paid in addition to those owed for Unruh violations. Among those penalties are recovered legal fees owed to a prevailing plaintiff.
The worry here is that the potential additional profit incentivizes attorneys to “test the legislation” of accessibility in California.
Furthermore, there is concern that these penalties' double nature can hinder a business's ability to survive, let alone make itself accessible. Many of the cases we hear about involve larger corporations facing legal scrutiny. If the company is big enough, it can take the financial hit without suffering too badly.
Smaller businesses don’t necessarily have the same footing. As such, owners of modest and burgeoning businesses fear that, due to certain ambiguities around digital accessibility requirements, they are in a vulnerable situation.
But it should be noted that there are systems in place in the legal system to help deter frivolous ADA cases. If a business wants to protect itself from being sued, the best practice would be to align its physical locations with the ADA and its digital products with WCAG.
California’s Unruh Act, a civil rights act predating most federal measures, remains a consequential piece of legislation. It continues to impact the enforcement of ADA laws and accessibility standards. To avoid Unruh violations, California businesses ought to ensure that their practices align with existing accessibility standards.`