Whisper Lounge Fails ADA Website Compliance

The California Court of Appeal recently decided Thurston v. Midvale Corp which addressed website compliance as it relates to ADA and the Unruh Civil Rights Act. In summary, the Plaintiff, Thurston, was blind and used a screen reader software to access the internet. Thurston sued a Los Angeles restaurant, The Whisper Lounge, based on the fact that her software was unable to read the menu or make reservations on the website.

The Whisper Lounge’s website allowed sighted individuals to access the menu and make reservations 24 hours a day. In contrast, the reservation portion of the website was inaccessible with Thurston’s software. The Whisper Lounge attempted to provide disabled individuals comparable service by providing an opportunity to make reservations by telephone. The court noted that the telephone reservations were limited to business hours and did not provide the same access to the disabled Plaintiff. The Court held that the website violated the California Unruh Act by failing to meet its obligations under the ADA and issued fines against the restaurant. Moreover, the Court ordered that the Whisper Lounge must bring its website into compliance with the WCAG 2.0 Level AA success standards.

Thurston acts as a warning to salespersons and brokers who own or operate websites. The Court in Thurston applied a $4,000 statutory penalty per violation.

The statutory penalty as well as the legal fees associated with defending allegations could easily crush small brokerages who are forced to incur unplanned legal fees in defending or settling the matter. Prudent website owners will carefully observe their obligations under the ADA, the Unruh Act, and the WCAG success standards.

By way of summary only, the WCAG standards require a website’s content to be perceivable to the senses, operable with various interfaces forms and controls, understandable to disabled individuals, and the content of the website must be able to be used reliably by a wide variety of assistive technologies. While this summary is not exhaustive, it stands as a haunting reminder of the increased exposure that a salesperson and broker assume when operating a website.

Although Thurston addressed a company’s website, it indicates a trend that the Courts and Legislature will follow when assessing ADA compliance in the digital era. Recently, the real estate community began using virtual tour software as a method to provide buyers with time efficient and cost effective tours. While the software’s compliance may vary, it is of the utmost importance to keep State and Federal obligations in mind when assessing the implementation of new software.

Website owners should seek competent legal advice and the aid of website specialists in order to bring their website into compliance with State and Federal obligations.  Although the short term costs associated with compliance may be high, the unplanned costs that website owners will incur in defending or settling non-compliance allegations will be significantly higher.  Thus, the best practice is to bring websites into compliance in order to avoid potential allegations of non-compliance under the ADA or Unruh Act.