For any business owner in California, I believe there are two fundamental challenges: one is making a profit to pay your bills. The other is compliance with the myriad of state and federal laws. Among those laws is one that unfortunately many well-intentioned business owners overlook. That is the Americans with Disabilities Act — more commonly known as the ADA. Not only is ensuring compliance the responsible thing to do, failing to do so could be extremely costly and leave you open to crushing litigation and fines.
In the simplest of terms, the ADA is a federal law intended to ensure accessibility to those with disabilities. The ADA was first signed into law in 1990 and was more recently amended in 2008. It generally applies to these areas: employment; public services and transportation; public accommodations (such as retail businesses, restaurants, and grocery stores); telecommunications; and a miscellaneous section related to threats and retaliation. The State of California has a similarly related law, the Fair Employment and Housing Act, or FEHA. While the ADA applies to employers with 15 or more employees, California state law applies to those with 5 or more and is similar to the federal statute.
So, who is considered to be protected by the ADA? According to the US Equal Employment Opportunity Commission, an individual is considered disabled if they have a physical or mental impairment that substantially limits one or more major life activities. As employers, we generally have a legal — and a moral — responsibility to ensure we provide reasonable accommodations to disabled employees and job candidates. Additionally, the law pertains to a host of physical factors in and around our businesses, such as providing parking, accessibility ramps, and proper doorway sizing.
Failing to comply with the ADA opens business owners to costly fines and litigation — including from so-called “serial lawsuits.” Such lawsuits are filed against numerous businesses by a single individual (or group of individuals) and can seek relief in terms of tens of thousands of dollars. For example, several years ago, a $60,000 settlement was sought from a local restaurant in Merced County, California. ADA website lawsuit settlement amounts such as this are not unusual as ADA lawsuit settlements are often very expensive. According to a Merced Sun-Star article at the time, the owner reportedly spent $50,000 dollars in repairs and attorney’s fees. A second Merced County business mentioned in the same Merced Sun-Star story also found itself in substantial legal trouble to the tune of tens of thousands of dollars.
Though it may feel like it cannot happen to you, even small business owners should know that they could be liable to have fines or penalties assessed against them for failing to comply. The US Department of Justice is responsible for enforcement actions of the federal law. Under California law, a business can be fined a minimum of $4,000 for an ADA violation.
WEBSITES AND ADA COMPLIANCE: INCREASE IN RECENT LAWSUITS AND HOW BUSINESSES CAN PROTECT THEMSELVES
An often-overlooked area by employers that has presented recent challenges is websites and their accessibility. Even large businesses have found themselves surprised by litigation. Their stories serve as a precautionary tale and reminder that now is the time to take an inventory of your accessibility.
ADA compliance – just do it: A Nike accessibility lawsuit filed in 2017 alleged that their website was not accessible for the visually impaired. This is a common violation of Title III of the ADA for businesses. It prohibits “discrimination on the basis of disability in the activities of places of public accommodation.”
Other large companies that have had Title III lawsuits filed against them include Amazon, Burger King, Domino’s Pizza, Five Guys Burgers, and Fries, Netflix, and several more. Web Content Accessibility Guidelines detail how to stay ADA compliant with your website and mobile app. It is a great place to start for making an ADA website compliance checklist. 2021 may just be the time to start that list because it is more likely than ever for your business to be unpleasantly surprised by a lawsuit. “Website not ADA compliant” is one of the top reasons for this surprise.
To help your business get a head start on ADA compliance, the items below are responsible for the most common ADA website compliance lawsuits according to this article by Essential Accessibility.
The Most Common ADA Compliance Issues for Websites:
- Missing alt text
- Missing labels
- Empty links
- Redundant links
- Missing page titles
The Most Common ADA Compliance Issues for Apps:
- Apps not compatible with screen-reader technology
- Missing alt text
- Missing navigation links
As for “Who does ADA website compliance apply to?” the same 15 employees or more standard applies under federal law, and 5 or more under California law.
It is important to note that an employer that is subject to the ADA provisions is not expected to ensure accommodations that would cause an “undue hardship,” which is considered to be those actions requiring significant difficulty or expense. However, the simplest way to avoid a violation of the ADA is to ensure compliance.
While we cannot cover everything you need to know as a business owner in a single blog post, we can give you some general guidelines. In terms of the law, we strongly recommend consultation with a trusted attorney. At Proper Defense, we are uniquely qualified to help businesses navigate the continuously updated requirements related to ADA compliance, making us an ideal choice for an ADA defense attorney.
PREVENT AND PROMPTLY ADDRESS ADA COMPLIANCE ISSUES WITH PROPER DEFENSE
ADA compliance is a complex issue, and as a busy employer, it is advantageous to have sound legal advice and representation to ensure all standards are being met. As the Proper Defense Civil Division Founder, I focus my practice in labor and employment law. My extensive experience has helped businesses of all sizes make sure they are in compliance (and continue to stay in compliance).
For a true advocate that you can trust, in a judgment-free zone, contact Proper Defense Law Corporation today. For a FREE consultation in the Fresno area, call (559) 825-3800. You can reach us at our Beverly Hills location by calling (424) 284-4066. You can also schedule an appointment online on our Contact Us page. It gets better with Proper Defense, we promise.
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