Website ADA Lawsuit Ruling Denies Telephone Auxiliary Aid Defense, but Limits Damages

June 7, 2018 

Website ADA Lawsuit

On May 21, 2018, a California state court granted summary judgment to plaintiff Cheryl Thurston (“Plaintiff”) in a website accessibility lawsuit brought under California’s Unruh Act, which provides that a violation of Title III of the Americans with Disabilities Act (“ADA”) is also a violation of the Unruh Act. Plaintiff, a resident of California who is legally blind, filed this website ADA lawsuit against a restaurant, the Midvale Corporation d/b/a The Whisper Lounge (“Whisper Lounge”), in the Superior Court of California, County of Los Angeles (BC663214). In its decision, the court awarded Plaintiff statutory damages in the amount of $4,000.00 and ordered the Whisper Lounge to comply with the requirements of the Web Content Accessibility Guidelines (“WCAG”) 2.0 AA.

Plaintiff’s Website ADA Allegations and Whisper Lounge’s Defenses 

In the instant website ADA lawsuit, Plaintiff alleged that she visited Whisper Lounge’s website, (the “Website”), on February 20, 2017, and four to five times thereafter.  Plaintiff claims that her screen reading software encountered certain access barriers that prevent blind and other visually impaired users from obtaining equal access to the Website, including: (1) that the Website menu was offered in an unreadable graphic image; (2) that the link to a pdf of the menu resulted in an error message; (3) the inability to make an online reservation; and (4) that graphics were not labeled or inadequately labeled with descriptive tags.

Whisper Lounge, an upscale restaurant in Los Angeles, argued that its Website is not a place of public accommodation within the meaning of the ADA.  Whisper Lounge also argued that its Website offered appropriate alternative auxiliary aids in the form of an email address and a telephone number through which it provides access to the same information available on its Website.

The Court’s Decision in the Website ADA Lawsuit 

In granting summary judgment in the instant website ADA lawsuit in Plaintiff’s favor, the court found that the Website qualified as a place of public accommodation because the Website offered “‘services, . . . privileges, advantages, or accommodations of’ a restaurant, which is a place of public accommodation under the ADA.”

In addition, the court found that Whisper Lounge did not offer appropriate auxiliary aids that offer “full and equal enjoyment” to the Website because a telephone number or email-imposed burdens on the visually impaired—such as waiting for an email response or a return phone call during business hours—which were not imposed on sighted individuals who were able (at any time of day or night) to navigate the Website, review the Website menu, and make online reservations.

Importantly, for future defendants in website ADA lawsuits brought in California, the court limited Plaintiff’s request for damages.  Specifically, Plaintiff sought statutory damages in the amount of $4,000.00 for each time that she visited the Website.  However, the court rejected this request finding that “repeated visits to the same inaccessible website does not establish a separate offense.”

Website ADA Lawsuits and Appropriate Auxiliary Aids 

The court’s decision in the instant website ADA lawsuit was limited to a circumstance where one of the auxiliary aids—a telephone number—was only available during normal business hours.  Had the telephone number been available 24 hours a day, it is hard to predict how that would have affected the outcome of the case.  In this fluid website accessibility legal environment, business owners that operate only online or in conjunction with physical brick-and-mortar spaces should consult with experienced counsel to ensure that all websites provide equal access and otherwise comply with WCAG 2.0 AA.

With the prospect of significant regulatory and legal liability at stake, it is more important than ever to consult with experienced Internet counsel before responding to website accessibility-related legal threats.

If you are interested in learning more about this topic or have been served with legal process in connection with issues involving website accessibility, please e-mail us at or call us at (212) 246-0900.

The material contained herein is provided for informational purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney.  Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney. 

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David Klein

David Klein is one of the most recognized attorneys in the technology, Internet marketing, sweepstakes, and telecommunications fields. Skilled at counseling clients on a broad range of technology-related matters, David Klein has substantial experience in negotiating and drafting complex licensing, marketing and Internet agreements.

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