Courts across the country have increasingly held that the websites of certain businesses that provide goods and services to the public are covered by the Americans with Disabilities Act (ADA). As a result, many businesses, including mortgage lenders, are required to take steps to ensure that their websites are accessible to individuals with disabilities. Courts have required businesses to implement the Web Content Accessibility Guidelines (WCAG) 2.0, a set of voluntary guidelines for accessible online content. WCAG 2.0 provides a roadmap to make websites compatible with screen readers used to navigate the internet by individuals who are blind or have low vision, for example, and ensures that videos on websites are captioned or otherwise accessible to consumers who are deaf or hard of hearing.
In addition to website accessibility litigation under the ADA, plaintiffs' firms have also included claims under state nondiscrimination statutes. In May 2018, a plaintiffs' firm brought a civil action against a restaurant under California's Unruh Civil Rights Act. Thurston v. Midvale Corp., Case No. BC663214 (Cal. Super. Ct., L.A. County, May 21, 2018). The blind plaintiff alleged, for example, that she was unable to access the restaurant's menu online because the menu was offered in a graphic image that was incompatible with her screen reader tool, a PDF link to the menu was inaccessible, and she was not able to make a reservation online like sighted customers.
The California state judge ruled in the plaintiff's favor on a motion for summary judgment, finding that the restaurant’s website was covered by the state civil rights statute and that the inaccessibility of the website was discriminatory under the Unruh Civil Rights Act. The court required the restaurant to conform its website to WCAG 2.0 Level AA and pay statutory damages of $4,000.
The court also rejected the business' defense that its website published an email address and telephone number at which the restaurant could be contacted during business hours, stating: "the provision of an email or phone number does not provide full and equal employment of Defendant's website, but rather imposes a burden on the visually impaired to wait for a response via email or call during business hours rather than have access via Defendant's website as other sighted customers." The court did not opine as to whether provision of 24/7 phone or email access could be sufficient to provide accessibility to consumers.
The last several years have marked a significant rise in the number of claims against businesses regarding the accessibility of their websites. Such claims have been made through demand letters and civil actions in state and federal court, including against mortgage lenders, banks, and other consumer financial services institutions. While the Thurston case involved a restaurant, similar claims have been made against the websites of mortgage lenders, such as regarding the ability of consumers to access applications and other online content using screen readers. Businesses are advised to review the accessibility of their websites, using the WCAG 2.0 guidelines and commonly used screen reader tools, to determine conformance with the WCAG success criteria. Businesses also should ensure that internal risk mitigation controls are in place—including ADA policies and procedures, training, and vendor management—to ensure that websites are monitored for ongoing compliance, given the dynamic nature of online content.
