For over a decade, I’ve been monitoring and analyzing federal and state lawsuits related to digital accessibility. One thing I can say about this space is that the only constant is change. Many new laws and regulations have been introduced, and several existing ones have been updated or revised. At the same time, we’ve also seen an ever-increasing number of annual lawsuits.
In 2018, there were more than 2,300 lawsuits. In 2025, estimates suggest we’re on pace for nearly 5,000. These trends are happening on multiple levels. The combined number of federal and state lawsuits is definitely increasing, but at the same time, we are also seeing a trend towards increased state-level lawsuits, particularly in California, with cases related to the Unruh Civil Rights Act.
In this post, we’ll take a closer look at the Unruh Act, and in doing so, we’ll also explore its relationship to the Americans with Disabilities Act (ADA), as the interplay between the two has had a key role in many notable lawsuits. My goal is to help you understand how and why lawsuits occur, the steps you can take to avoid being sued, and how state and federal regulations are combining to potentially create blockbuster settlement amounts.
The ADA and Title III, and the influence of injunctive relief
I’m actually going to begin with the ADA as, historically, it has been the basis for the majority of US lawsuits filed in the last decade—in particular, Title III, which states that “no individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.”
When it comes to digital accessibility, one of the key challenges associated with the ADA is that the concept of websites and digital storefronts as places of public accommodation didn’t really exist back when the ADA was initially written and ratified. (You’ll often see the term “nexus,” which refers to the idea of there being a strong connection between a website and a physical place of public accommodation.)
Notwithstanding recent updates to Title II, the reality is that we must continue to rely on the court system to determine whether the ADA applies to this category of places.
As you would expect, the circuit courts are split on these issues. Using key precedent cases such as Robles v. Domino’s Pizza LLC and Gil v. Winn-Dixie Stores, Inc., the 3rd, 6th, 9th, and 11th circuit courts say that a nexus between a brick-and-mortar operation and a digital operation must exist for the ADA to apply. Using as precedent the Carparts Distribution Center, Inc. v. Automotive Wholesaler’s Ass’n of New England, Inc lawsuit, the 1st, 4th, and 7th circuit courts say that no nexus is required for a website or digital storefront to be covered by the ADA.
What all this means is that in some parts of the country, courts say a website counts as a public accommodation, while in other regions, it only counts if it’s tied to a physical location.
Despite all of these circuit courts failing to get on the same page, the Department of Justice has consistently held that places of public accommodation include websites and mobile applications, and that they must conform to Web Content Accessibility Guidelines (WCAG) 2.1, Level AA.
All of this confusion, along with a lack of formally documented requirements and standards, is costing companies money as they attempt to understand what they’re actually required to do. At the same time, due to the ADA’s application of injunctive relief, attorneys have a gateway to recover their fees, creating a significant incentive for the lawyers to bring these cases to court. Just imagine what might happen if we added statutory damages to this situation!
The Unruh Act, its application to digital storefronts and websites, and the financial impact of statutory damages
In case my foreshadowing wasn’t obvious enough, let me be clearer: California’s Unruh Act includes statutory damages for violations.
As with the ADA, the Unruh Act initially focused on preventing discrimination in brick-and-mortar business establishments. However, its application in the courts has consistently been interpreted to include digital storefronts and websites, reinforcing the need for websites and mobile applications to provide full accessibility to people with disabilities.
Unlike the ADA, the Unruh Act includes additional financial remedies beyond the injunctive relief of simply fixing issues and paying attorney fees. The Unruh Act allows statutory damages of a minimum of $4,000 per violation. Just imagine how the total amount of statutory damages would escalate if we were to count the violations on each page of a website, or if we could consider each issue encountered by a user throughout their digital journey as a separate instance!
According to WebAIM’s Million Project, across one million defined web homepages, 50,960,288 distinct accessibility errors were detected, resulting in an average of 51 errors per page. The staggering financial burden of just these one million homepages can be quickly calculated as $203 trillion if we consider each error at a minimum of $ 4,000. That’s quite a mountain of risky technical debt. Additionally, that report shares that 94.8% of those million homepages had at least one detected WCAG 2 failure. This means that 94.8% of those one million companies (948,000 companies) are subject to either injunctive relief with ADA or statutory damages with Unruh—or both!
Class action suits as a force multiplier for potential liability
The inclusion of statutory damages in the Unruh Act means we’re already talking about a lot of money. When you factor in the possibility of a class action suit, the numbers become pretty staggering.
As a reminder, a class action provides a method for a large group of plaintiffs with the same legal claims to effectively sue the defendant collectively as a class. Obtaining a certification as a class action becomes a force multiplier for potential liability.
Let’s explore the implications of a class action suit in the context of the Unruh Act’s establishment of a $4,000 penalty per violation. As we do so, remember that each violation could be an issue or problem on a webpage, or it could be each time that an individual encounters a problem—even if it’s the same problem on multiple pages. For our exploration, let’s presume it’s a class action suit on behalf of blind individuals in the state of California.
To get a sense of the numbers we’re talking about, we can examine population data and prevalence rates to arrive at a relatively realistic figure. Recent estimates indicate that approximately 0.7% of Californians are legally blind. Using the state’s population (listed in 2024 as 39,431,263 people), we can project that there are approximately 276,000 individuals who are legally blind in the state. However, we must acknowledge that using the measure of ‘legally blind’ against WCAG success criteria may cause us to underestimate here. By shifting from a clinical definition of legal blindness to a broader definition of vision difficulties, we can draw on a 2023 report by the Center for Research on Disability, which states that 845,000 individuals in California have blindness or low vision.
At this point, we’re getting into a stratosphere that my non-scientific calculator can’t navigate—but let’s try!
WebAIM’s 50,960,288 distinct errors—of which they say 95% of the most common are related to vision barriers—gives us 48,412,273 distinct errors. When multiplied by a class of 845,000 individuals, we get 41 quadrillion (that’s 15 zeroes for those of you keeping track) instances that could be assessed at a minimum of $4,000 each. Ouch! My head hurts here, but we’re looking at $16 quintillion.
Of course, these are not literal projections—they’re a way to illustrate how liability compounds under Unruh’s per-violation model. We’re also making an assumption here that every one of the businesses analyzed by WebAIM actually does business in California. That’s probably not the case, but we should talk about “The California Effect” all the same.
And by the way, our explorations above weren’t entirely speculative, as evidenced by this recent headline: $5.15M Fashion Nova website accessibility class action settlement:
The Fashion Nova settlement benefits a nationwide and California subclass of legally blind individuals who have attempted to access Fashion Nova’s website using screen-reading software since Feb. 26, 2018.
According to the Fashion Nova class action lawsuit, the retailer’s website is not compatible with screen-reading software for the blind and vision-impaired. As a result, blind individuals are allegedly denied an experience equivalent to that of sighted individuals.
Fashion Nova, an online clothing retailer, has not admitted any wrongdoing but agreed to a $5.15 million class action settlement to resolve the accessibility allegations.
The California effect
The Unruh Act is a California state law, so an obvious question is: How does Unruh apply to entities outside of California?
The unofficial answer is probably something like “it depends,” or “it’s an evolving legal issue.” Basically, things can, and probably will, change at some point. The prevailing legal consensus has been that a business must have some type of nexus, or physical connection, to California for the Unruh Act to take effect. However, given the rate of change in California and with other states watching and developing similar legislation, it seems likely that exposure will explode beyond a physical nexus in the not-too-distant future.
For the time being, what calls the Unruh Act into play is having a physical presence in California that qualifies as a business establishment. If that’s your situation, then both your physical locations and your digital operations are in scope. And remember, the physical location doesn’t have to be a retail space. It could be anything, even just a warehouse or operations hub.
Now, let’s clarify what currently does not call the Unruh Act into play:
- Having a website accessible to Californians
- Advertising to Californians
- Shipping something to Californians
- Selling to Californians
As with many laws and regulations surrounding digital accessibility, the fourth statement about “selling to Californians”—although seemingly clear in the statute—is also subject to interpretation by the courts. At least one appeals court has held that selling to a significant portion of Californians in a company’s customer mix—in this case, 8% to 10% of overall sales—would indeed subject the company’s website to Unruh. The case in question is Thurston v. Fairfield Collectibles of Georgia, LLC. If this interpretation holds, it will significantly expand the scope of Unruh’s coverage.
There is another potentially huge exception: an individual could file suit against an out-of-state, website-only business with no physical nexus if they could prove intentional discrimination. This is a very high bar to meet, but at the same time, how many companies out there today can honestly say they are entirely unaware of their digital accessibility obligations under the ADA and the Unruh Act? (If you’ve read this far, you’re aware!). And if companies are aware, and yet have not taken steps to ensure equal access, is that not an intentional decision?
Now, I’m not a judge, of course, but I think it’s pretty safe to assume that an argument like the one I just made would sound plausible to the average citizen serving on a jury—all the more so if the argument were made by a top attorney from a talented law firm, on behalf of a dedicated class of plaintiffs who have a disability.
If it happens, I hope everyone has their scientific calculators ready for the statutory damage calculations!
The best defense is … a good digital accessibility program!
Not too long ago, I wrote an article titled “When it comes to digital accessibility lawsuits, the best defense is a good offense.” Among the topics I addressed in that article was the difference between lawsuits that are well-intentioned and those that, well, aren’t.
Ideally, the end goal of a lawsuit is a more inclusive and accessible world. Unfortunately, however, many lawsuits are simply predatory. As we’ve seen from our analyses above, the possibility of huge payouts is very real, which means the predators will be circling.
I concluded my article by writing the following words:
“Invest in digital accessibility now and avoid future lawsuits altogether. You’ll pay less overall, and the benefits to your company will last for the long term. Plus, you’ll be doing the right thing by making your content more inclusive and accessible to all, which is the real goal!”
If you’re ready to take proactive steps to avoid future lawsuits, and if you’re passionate about ensuring your business is doing the right thing by all its customers, contact Deque today. We have the strategic expertise to help you achieve and maintain accessibility, mitigate risk, and continue to succeed in this complex regulatory landscape.