The Americans with Disabilities Act is a civil rights law that prohibits discrimination based on disability – this is a federal law.
The Unruh Civil Rights Act is a state law, the California State law that prohibits discrimination generally.
And one of the demographics predict protected is people with disabilities. So you can’t discriminate against people with disabilities under the civil right- under the Unruh Civil Rights Act.
But what’s happening is the Unruh Civil Rights Act is being applied to websites and interestingly the Unruh Civil Rights Act is like the ADA in that nothing in these laws mentions- really gets to digital accessibility as we know it today.
Instead, we see language that is generalized and applicable to physical structures but not websites and mobile apps.
So the Unruh Civil Rights Act was enacted in 1959. In 1992, it was amended to apply to people with disabilities. So you can’t discriminate against people with people with disabilities and what they did was they wholesale adopted the Americans with Disabilities Act.
So they just made it easy on themselves and if there’s a violation of the ADA in California, then it’s a violation of the Unruh Act.
But, again, the Unruh Act doesn’t talk about websites but it’s being applied to websites.
To be fair the ADA doesn’t apply to- doesn’t mention websites but it is also been applied to websites.
So these are technical arguments, but what’s happening is- and what’s happening is they’re being applied they’re being applied anyways.
Plaintiffs’ lawyers are saying are basically daring anybody to fight them on the technical details.
So importantly I’m going to read some language from California Civil Code section 51, which is the which is the Unruh Act, and it states that, all persons within the jurisdiction of the state, so California, are free and equal and no matter what their sex, race, disability, etc. is they are entitled to full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.
And then it also says under section F, a violation of the right of any individual under the Americans with Disabilities Act shall also constitute a violation of this act.
And so when I talk about this being applied to physical structures, it’s in in Section 51.5, subsection A and I think this is actually subsection C.
This is in my notes but I’ll put a link below but it says, this section shall not be construed to require reconstruction, alteration, repair structural or otherwise, or modification of any sort whatsoever beyond the construction alteration repair or modification that is otherwise required by other provisions of law to any new or existing establishment, facility, building improvement, or any other structure nor solve this section be construed to augment restrict or alter in any way the authority, etc.
So again this is getting this is this law is specific to physical structures and namely physical structures in California, but what is happening it is now being applied to websites potentially other digital assets that are located outside of California yet are servicing or are available to California residents.
So this is where the digital world comes into play and I think that’s a- this is a genuine question that is being glossed over when we see these plaintiffs’ lawyers- when they lay a legal foundation they’re not addressing-
It’s not in their benefit to address this because it’s this is a gray area, it’s uncertain.
And, but importantly the California Unruh Act provides for more damages than the the American Disabilities Act.
So under Section 52 of the Unruh Act, victorious plaintiffs are entitled up to up to three times actual damages and no less than $4000 in statutory damages and damages can include emotional distress.
So for California plaintiffs, this is this is a better law to- of which to make a claim for a lack of accessibility of a website or a mobile app or whatever it is.
So that’s the situation with the California Unruh Act.
There- of course there’s there are more details but generally that is what’s happening there.
There is this civil rights law in California, disability is protected under this law, the under- the under with within disability the ADA is adopted so any violation of the ADA is therefore- is there by a violation of the California Civil Rights- California Unruh Civil Rights Act and that is paving the way for these claims to be made.
But, of course, under the ADA we’re already stretching it because we know the ADA has- the language of- the ADA applies to physical structures and now the Unruh Act also very much applies to physical structures.
We can see this in the language and then but what is more specific to the Unruh Act is these are physical structures within California and I think that’s in a very important distinction when you look at the the technical the technical aspect of whether these claims are even rightfully being brought in.
But to bring it back to making your website accessible obviously it’s best practice not only for ADA compliance but you don’t want to get into questions you don’t want to get into a situation where you’re going back and forth with the plaintiff’s lawyer – ou’re engaged in a lawsuit and defending against it.
If you are making these technical arguments in court it is very, very costly so obviously you’d much rather just make your website or mobile app accessible to begin with.
Because these are- these are I think these are technical arguments that will eventually be addressed but by the time they are addressed we may see the Unruh Act- we may see the ADA they will already be updated to require accessibility of digital assets so it’s a- it’s a gray area in the law.
But we’re also at a point in time where the law is eventually going to update and they are going to make contemplations for the digital world. So at this time I think there’s an excellent technical argument that neither the American Disabilities Act nor the Unruh act apply to the digital world.
However, in practice- in real life, it’s not an argument you want to make in court and it’s easier just to make your website accessible.
So I wrote The ADA Book which is going to lay out the legal landscape, particularly I mean- obviously it’s the focus is on the American Disabilities Act but the same the information applies whether it’s the Unruh Act or the ADA.
You want to make your website accessible.
You want to- of course there are different contemplations when making digital assets accessible, but you want to have an accessible digital experience.
You want to provide an accessibility statement and The ADA book goes into all of that but this is what’s happening with the California Unruh Civil Rights Act.
