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No Longer a “Whisper” – California Appellate Court Joins List of Courts to Weigh in on Website Accessibility

In the first decision by a California appellate court addressing the application of Title III of the Americans with Disabilities Act (“ADA”) to websites, the court in Thurston v. Midvale Corp. (Sept. 3, 2019) 2019 WL 4166620, affirmed summary judgment for the plaintiff and held that the ADA, as incorporated by California’s Unruh Act, applies to websites connected to a brick and mortar business.

California’s Court of Appeal for the Second Appellate District declined to adopt the position of the U.S. Court of Appeals for the Third Circuit that the ADA applies only to physical locations. Instead, the court followed the position of the U.S. Court of Appeals for the Ninth Circuit, holding that “including websites connected to a physical place of public accommodation is not only consistent with the plain language of Title III, but it is also consistent with Congress’s mandate that the ADA keep pace with changing technology to effectuate the intent of the statute.” Id. at *6.  Declining to go a step further, the court refrained from holding that a website unconnected to a physical location is similarly subject to the ADA because that issue was not squarely presented.

The court also affirmed the trial court’s order requiring compliance with the Web Content Accessibility Guidelines (WCAG) 2.0, though it made clear that the defendant’s failure to comply with WCAG did not itself violate the ADA. It was merely evidence of the ultimate question – i.e., whether the website was accessible.

Finally, the court rejected the defendant’s

Website Accessibility Guidelines Get Update; California Court Limits Penalties to One Visit

An update has been published to the Web Content Accessibility Guidelines (WCAG) 2.0, the standards that have been applied by many courts in the absence of website accessibility regulations by the Department of Justice.

The new version, named WCAG 2.1, was published on June 5 by the World Wide Web Consortium (W3C), an industry group of website accessibility experts.

WCAG 2.1 amends the prior standards, which were issued in 2008, by adding 17 additional criteria to address accessibility barriers.  The updates are mainly related to mobile devices and disabilities that affect vision and cognitive function.

For example, WCAG 2.0 did not expressly address mobile applications, although many of the same criteria for website accessibility was also applicable to mobile apps. WCAG 2.1 provides additional guidance concerning accessibility of mobile apps, including:

  • user interactions using touch,
  • handling more complex gestures, and
  • avoiding unintended activation of an interface.

For users with low vision, WCAG 2.1 also extends content requirements to graphics, and introduces new requirements for text and layout customization. For users with cognitive, language, and learning disabilities, the WCAG 2.1 updates include a requirement to provide information about the specific use of input controls, and additional requirements to support timeouts due to inactivity.

Although the Department of Justice has not issued regulations concerning website accessibility, and has removed the issue from rulemaking, many courts have applied WCAG 2.0 as the standard for website accessibility. All criteria included in WCAG 2.0 are included in WCAG 2.1.

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