This summer, I wrote about a Title III lawsuit filed against cannabis company NC3 Systems dba Caliva. As a quick refresher, Title III of the Americans With Disabilities Act (“ADA”) requires that all businesses remove any barriers that affect a disabled person’s ability to access their products or services online.
The plaintiff had filed a complaint alleging that Caliva’s website had denied him full and equal access to Caliva’s facilities, goods and services. The plaintiff ultimately brought cause under Title III and the Californian Unruh Civil Rights Act (“UCRA”), which is slightly different and deserves its own primer, as it unfortunately also opens the door for the plaintiff to reclaim legal penalties. Here goes:
Like Title III, the UCRA guarantees everyone in California “full and equal” access to “all businesses of all kinds” and requires businesses to serve all individuals without arbitrary discrimination. Like the ADA, a “business facility” is defined to include Internet web sites for non-physical locations.
The law states that “anyone who is affected by conduct that violates the UCRA” stands. This is a narrower definition than that provided in Title III – a private plaintiff can only sue if he is actually the victim of the discriminatory act. Most relevant to our customers today is a person who visits a company’s website with the intention of using its services, but comes across conditions allegedly denying this full and equal access. It is not required that the person also conduct a transaction or enter into an agreement.
In contrast, the scope of potential liability under UCRA is quite large. Liability under the UCRA extends to whoever is responsible for the discrimination. Of course, the company itself is usually named as a defendant. However, liability can also extend to employees or even independent contractors if the facts are correct.
And as I mentioned above, the biggest practical difference between Title III and the UCRA is the mandatory legal penalty in addition to the other reliefs granted:
- Legal Sanction: A plaintiff is also entitled to a minimum of $ 4,000 in damages and up to three times the actual damage per violation – even if no actual damage has been incurred or proven. Again, the plaintiff must prove that the violation denied him “unrestricted and equal access to the place of public accommodation on a specific occasion”, which means that he was denied access by encountering the violation or by the Offense was deterred.
- Injunctive Relief: UCRA will approve injunctive relief, including permanent injunctive relief, injunctions, and injunctions.
- Compensation for damages: A plaintiff can claim their actual damage.
- Attorney’s fees and expenses.
Regarding the lawsuit, it looks like the plaintiff and Caliva quickly reached an agreement, no doubt in part because litigation in such cases is costly and the inclusion of UCRA claims results in a steeper damage calculation. The case was dismissed just over two months after it was filed. However, we should assume that these lawsuits will steadily increase in the New Year as companies continue to expand their online presence.