A blind person can sue an inaccessible website

Larry Tjan, CEO, NextClient.com

Appeals court upholds right to sue Rhode Island Winery under California law for discrimination based on use of website. by Maureen Rubin, JD

When designing websites for accessibility, there’s a lot to consider. WCAG standards have three different levels of conformance, with different standards applicable at different levels.

—Larry Tjan, CEO, NextClient.com

LOS ANGELES, CALIFORNIA, USA, March 21, 2022 /EINPresswire.com/ — Technology has radically transformed the way information is sent and received. But it also poses major challenges for people with disabilities who cannot always access the internet and all its riches. A blind man sued a winery because he couldn’t access their website. The trial court dismissed his case, but an appeals court remanded it so a lower court could determine whether the vineyard intentionally discriminated against the blind plaintiff in violation of state law.

In a unanimous, unpublished opinion from a three-judge panel, Associate Judge Lamar W. Baker of the California Court of Appeals, Second District, Division Five, wrote that plaintiff Abelardo Martinez, Jr. could continue his case against Diamond Hill Vineyards in Cumberland, Rhode Island. The vineyard’s website describes it as “a small, laid-back, family-run winery offering grape and fruit wines.” The case is Martinez v. Diamond Hill Vineyards, LLC, Case No. B308475. Plaintiff-appellant was represented by Scott J. Ferrell and Richard H. Hikida of Pacific Trial Attorneys in Newport Beach, CA. No appearances were scheduled by the defendant-respondent.

Martinez sued Diamond Hill because his website was incompatible with the screen reader software he needs to access the Internet. He called website barriers “pervasive.” His shortcomings included an inability to identify his language, which screen readers need to read content; a lack of “spacer images” or the alt text needed to “maintain layout”; and missing form labels, needed to “enable text labels that provide visible descriptions and larger clickable targets for form controls”.

The plaintiff’s claim was based on the Unruh Civil Rights Act, a 1959 California law that protects people from discrimination by businesses because of disability and a number of other traits. The Unruh Act parallels the Americans with Disabilities Act (ADA) in providing that violations of the ADA that cover public accommodations are automatically also violations of the Unruh Act. Unruh law, however, also allows damages for successful prosecutions.

Larry Tjan is CEO of NextClient.com, a website design company for lawyers and law firms. Tjan says his company started tackling accessibility issues in 2008, when the World Wide Web Consortium (W3C) released its first version of the Web Content Accessibility Guidelines (WCAG). These guidelines were updated in 2012 with WCAG 2.0 and again in 2018 with WCAG 2.1.

“WCAG standards have three different levels of conformance,” Tjan explains, “with different standards applying at different levels.” Tjan says that some of the changes his company makes when designing websites include using alternative text options for images and other non-text content, making sure videos on websites are properly captioned or captioned, including options for larger type, ensuring the website can be integrated with the user’s screen reader software, and more. “When designing for accessibility,” says Tjan, “there’s a lot to consider.” Tjan continues, “You may need to consider different ways to perform operations with a keyboard versus mouse and other options, increase the time allotted to timed interactions, disable flashing images, and create a Easier page and screen navigation for people with different abilities.

Martinez’s claim was based on two theories. First, he alleged intentional discrimination. He said Diamond Hill knowingly built, maintained, and failed to correct deficiencies in its website, even after being notified. Second, he alleged violations of the ADA and the Complementary Unruh Act. He sought injunctive relief, damages, attorneys’ fees and costs.

The winery did not respond to the plaintiff’s complaint and a Superior Court clerk issued a default judgment, but the trial court would not register it. Instead, he asked Martinez to justify why his case shouldn’t be thrown out. Specifically, he asked him to explain why the case should not be dismissed under the Unruh law, which requires a “link between the defendant’s website and its physical building”. The California Court of Appeals provides precedent that the ADA can only be enforced where “a website’s access barriers have interfered with an individual’s ability to use or enjoy the facilities offered within a connected physical place”. The ADA requires these attributes to meet its definition of “public housing.”

Martinez replied that a bond was not necessary, and even if it was, the Diamond Hill facilities met the appeals court’s requirements. He said the vineyard housed a tasting room, gift shop and facilities for group gatherings. This information, however, was not in his complaint, although he offered to amend it so that it could be included. He also argued that the Unruh Act is broader than the ADA.

Unconvinced, the trial court found that Martinez failed to state a cause of action because he failed to show a “link between Diamond Hill’s website and a physical location that was” available to him. “or” practice “, although he had many opportunities to do so. then.

In his appellate opinion, Judge Baker found it unnecessary to rule on the nexus issue because Martinez had included another cause of action through his willful discrimination claim, which which ultimately caused the judgment to be set aside.

Baker began the explanation of his reasoning by discussing when commercial facilities meet the ADA’s public lodging requirements. He wrote that federal courts have taken two “general approaches” to this issue. First, the minority view believes in the need for the physical location requirement discussed above. Second, the majority opinion holds that websites can support ADA claims if a disabled claimant has been “precluded or hindered… from equal access to or enjoyment of goods and services offered at the defendant’s physical facilities.”

Baker again explained why his court did not have to decide between the two theories. He said Martinez provided another “valid and undisputed recovery theory”, that of intentional discrimination. He said ‘evidence of disparate impact…may be evidence of intentional discrimination’. Martinez, he wrote, should be given the opportunity to show how Diamond Hill was aware of its inaccessible website and failed to correct its barriers even after being told of their existence.

He therefore sent the case back to the trial court for further action and awarded costs to Martinez.

Any business running a website, and that’s probably almost all of them, should be aware that people with disabilities also need information about their business. And it will be much easier and cheaper to make sure they get it now.

Larry Tjan
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