The Rise of Title III ADA “Drive-By” Lawsuits and the Unruh Civil Rights Act: What Business Owners Need to Know

The Rise of Title III ADA “Drive-By” Lawsuits and the Unruh Civil Rights Act: What Business Owners Need to Know

In recent years, an increasing number of business owners have found themselves targets of what are often termed “drive-by” lawsuits under Title III of the Americans with Disabilities Act (ADA).  These lawsuits, typically filed by “serial plaintiffs”, are also linked to claims under the Unruh Civil Rights Act in California.  It is crucial that business owners understand these statutes to ensure compliance with accessibility laws and protect themselves from potential litigation.

Title III of the ADA and the Unruh Civil Rights Act

Title III of the ADA mandates that all public accommodations must be accessible to individuals with disabilities.  The ADA requires that business must provide full and equal enjoyment of their goods, services, facilities, and websites.  This includes, but is not limited to, removing architectural barriers and providing accessible websites.  Non-compliance can result in lawsuits, which is where the Unruh Civil Rights Act comes into play.

The Unruh Civil Rights Act, unique to California, extends protections against discrimination, including disability discrimination.  Unlike the ADA, which does not provide for damages but only for injunctive relief and attorney’s fees, the Unruh Act allows plaintiffs to seek monetary damages—$4,000 per violation—making it a lucrative target for “serial plaintiffs” and self-appointed “testers”.

The Rise of “Drive-By” Lawsuits

“Drive-by” lawsuits refer to the practice where plaintiffs, often with the help of specialized attorneys, target businesses with a high volume of ADA violation claims.  These plaintiffs may, “drive-by” a business, identify minor accessibility issues, and file a lawsuit without prior notice or an opportunity for the business owner to address the alleged violations.

This trend has particularly surged in California due to the dual applicability of the ADA and the Unruh Act.  Serial plaintiffs exploit these laws, sometimes targeting dozens or even hundreds of businesses in a short period with boilerplate lawsuits, with the aim of settling with businesses for cash payouts in lieu of expensive litigation.

Recent Developments in ADA Matters

While California and Federal courts have added hurdles to deter serial plaintiffs from filing these lawsuits, recent findings have added an additional wrinkle for businesses to contemplate.

Leading up to 2023, defendants had success in challenging serial plaintiffs and testers’ standing to bring their lawsuits.  Typically, to have standing in an ADA matter, the plaintiff must establish an intent to return to the business.  However, in Langer v. Kiser (2023) 57 F.4th 1085, which involved a serial plaintiff who filed nearly 2,000 ADA lawsuits in federal and state courts, the United States Court of Appeals for the Ninth Circuit reversed the district court’s finding that the serial plaintiff’s intent to return was not credible.  The Ninth Circuit held courts must “take a broad view” of standing in civil rights cases, particularly in the ADA context, and that a serial litigant’s intent to return may not be rejected “simply because” he/she is a serial litigant.  The Ninth Circuit also held that district courts cannot use improper adverse credibility determinations to circumvent “tester” standing for ADA plaintiffs.  There, the Ninth Circuit found that the serial plaintiff met his burden to establish standing because he: (1) physically went to the store near his home; (2) saw there was a lack of accessible parking in violation of the ADA; and (3) spent time taking 52 photos to document the violations.  The Ninth Circuit reasoned that the serial plaintiff established standing via his intent to return because of his avocation as an ADA tester.

While the effect of Langer is still unclear, Langer embolden serial plaintiffs to file additional lawsuits with “tester” allegations to support an intent to return to the defendant’s business.

Recent Developments in Website Accessibility Matters

Another emerging area of litigation under the ADA and Unruh Act involves website accessibility.  Website accessibility refers to the design and functionality of websites that allow individuals with disabilities, such as visual impairments, hearing impairments, or motor impairments, to access and use the website effectively.  Website accessibility may include features such as alternative text for images, captions for videos, keyboard navigation, and compatibility with assistive technology such as screen readers.

While the ADA does not explicitly address website accessibility, courts have interpreted Title III to apply to websites that have a nexus to a physical place of public accommodation, such as a store, a hotel, or a restaurant.  Some courts have also extended the ADA to websites that operate exclusively online, such as e-commerce platforms, online services, or online education providers.  The rationale is that these websites offer goods and services in the same way that brick and mortar stores do, and barriers to accessibility impair the equal opportunity of individuals with disabilities to participate in society.

This has led to a significant increase of website accessibility lawsuits in recent years, as plaintiffs and attorneys have sought to enforce the ADA and Unruh Act against businesses that operate or maintain websites that are allegedly inaccessible to individuals with disabilities.  These lawsuits often allege that the plaintiffs encountered barriers or difficulties when attempting to access or use the websites, such as inability to complete online transactions, access information, or navigate the web pages.  These lawsuits also often seek injunctive relief, requiring the defendants to make their websites accessible in accordance with the Web Content Accessibility Guidelines (WCAG) 2.2 or other standards, as well as damages under the Unruh Act.

For example, the United States Court of Appeals for the Ninth Circuit in Robles v. Domino’s Pizza, LLC (2019) 913 f. 3d 898 held that the ADA applied to Domino’s website and mobile app, which allowed customers to order pizza for delivery or pickup from nearby stores.  The Ninth Circuit found that the website and app had a sufficient nexus to Domino’s physical locations, which were places of public accommodation. As such, the court reasoned that the ADA provided clear notice of its general accessibility requirements, and that Dominos could use the WCAG 2.0 as a flexible standard to achieve compliance.

In more recent positive developments for businesses, the California Fourth District Court of Appeals in Martin v. Thi E-Com., LLC (2023) 95 Cal. App. 5th 521 found that “stand-alone websites” are not subject to the ADA.  The Fourth Circuit reasoned that: (1) the ADA unambiguously requires a physical location; and (2), even if the language were ambiguous, the unique history and regulation of the Internet counsel against interpreting the ADA as applying to the Internet.  As such, blind “testers” that filed suit against a company that had allegedly discriminated against the blind by being incompatible with screen reading software failed to state a claim because there was no violation of the ADA arising from any physical space.

In light of Martin, businesses operating under the jurisdiction of the California Fourth District Court of Appeals that do not operate a physical location are now afforded greater protection against “serial plaintiffs” and “testers”.  That said, there remains a split of authority among the State of California and Federal levels on this issue.  As the Fourth District presides over Inyo, San Bernardino, Riverside, Orange, San Diego, and Imperial County, this issue remains in flux and an opposite result may occur in other jurisdictions.  Time will tell if the United States Supreme Court will eventually weigh in on the issue, and/or if Congress will refine/clarify the ADA.

Practical Steps for Business Owners

To mitigate the risk of becoming a target of “drive-by” lawsuits, business owners should proactively ensure their premises comply with ADA standards.  Here are some practical steps:

1. **Conduct Regular Accessibility Audits**:
   1. Engage a certified access specialist (CASp) to perform regular audits of your facility.  This will help identify and rectify potential issues before they become grounds for a lawsuit.
   2. Have your IT department conduct an accessibility audit for your website.
2. **Maintain Detailed Records**: Keep comprehensive records of all accessibility improvements and compliance efforts. Documentation can be crucial in demonstrating good faith efforts to comply with the law.
3. **Train Staff**: Ensure your staff is trained to understand and accommodate the needs of individuals with disabilities. Customer service plays a significant role in compliance and can help prevent misunderstandings that may lead to litigation.
4. **Create an Accessibility Support Hotline**: Always include an accessible customer support hotline for brick and mortar as well as digital locations. This provides an avenue for effective communication with customers and allows you to obtain advance notice to accommodate legitimate requests.
5. **Consult Legal Counsel**: Regularly consult with an attorney specializing in ADA and accessibility laws. Legal counsel can provide guidance tailored to your specific business and help navigate complex compliance issues.

While “drive-by” lawsuits under the ADA and Unruh Civil Rights Act pose a challenge for business owners, proactive measures can significantly reduce the risk of litigation.  By prioritizing accessibility, allocating funds towards accessibility, and staying informed about their legal obligations, businesses can create inclusive environments for all customers while safeguarding against opportunistic litigants looking for a quick payday.