Access Denied: California Appellate Court Refuses to Apply the Americans with Disabilities Act to Web-Only Businesses
Authored by: David Goldman and Miguel Saldaña
For decades, California businesses have been subject to both Federal and State laws requiring equal access to persons with disabilities to businesses where products or services are offered to members of the public. Title III of the Americans With Disabilities Act (“ADA”), a Federal law, and California’s Unruh Civil Rights Act (“Unruh Act”) allow persons with disabilities to sue businesses that are not fully accessible to them. While the ADA provides aggrieved persons with the right to obtain injunctive relief against offending businesses and recovery of their attorney’s fees and costs, it does not provide for recovery of monetary damages. However, the Unruh Act allows for not only the same remedies as the ADA, but also for recovery of $4,000 statutory damages, without the need of proving any injury or damage. Further, every violation of the ADA is, automatically, a violation of the Unruh Act. The monetary incentive under the Unruh Act has created a cottage industry of disabled individuals who seek out businesses that may not be fully compliant with access laws and regulations, which are often very technical and not intuitive.
In recent years, with the growing popularity of online shopping and the proliferation of web-only businesses, these accessibility-based lawsuits have increasingly focused on web-based businesses. Issues have arisen whether online-based businesses (those who do not have physical “brick and mortar” presence), constitute “places of public accommodation,” so that they are subject to the ADA. California courts have issued inconsistent decisions, leading to confusion for businesses that operate exclusively on the Internet regarding if, and how, they must comply with accessibility laws and regulations.
The federal Ninth Circuit Court of Appeal, which includes California, has long held that business websites without any nexus to physical locations within the state are not considered a “place of public accommodation” subject to the ADA. As a consequence, visually impaired persons have typically pursued claims in California state courts instead, with different trial courts issuing conflicting decisions.
In August 2022, a California appellate court refused to hold that a web-only business was a “place of public accommodation” and, thereby, subject to the ADA. Martinez v. Cot’n Wash, Inc., (“Martinez”). The court held that while the phrase “place of public accommodation” was identified in the law by 12 categories of examples, no reference to web-only businesses was made and the court found the phrase to be ambiguous. Although the court believed that it would be consistent with the goals of the ADA that the law also apply to web-only businesses, it determined it would not attempt to address the gaps and ambiguities in the law, when Congress and the U.S. Department of Justice (“DOJ”) had failed to either enact clarifying statutory language or issue regulations that clearly identify the obligations of businesses that only operate on the Internet.
What did the California Court of Appeal decide in Martinez?
Cot’n Wash (“CW”) sells laundry detergent products exclusively online. Martinez alleged that he is a blind person and uses screen reading software to enable him to purchase products online, but he could not access CW’s product information and shop on CW’s website. He then filed a civil complaint in state court for violation of the ADA and the Unruh Act that alleged CW’s website was inaccessible to him and not compatible with screen reading software commonly-used by vision-impaired individuals. In turn, CW filed a motion to dismiss the complaint (a demurrer) and asserted that Martinez failed to state a valid claim because (1) its allegedly inaccessible website did not violate the ADA, and (2) the complaint did not sufficiently allege facts to establish a “discriminatory intent,” which the Unruh Act requires if no violation of the ADA has occurred.
The trial court sustained the demurrer and entered a judgment of dismissal, which decision was upheld by the California appellate court. The appellate court held that, as to intentional discrimination, the discriminatory effect of a facially-neutral policy or action could not, by itself, be a basis for inferring intentional discrimination under the Unruh Act. In addition, Martinez’sallegation that he made CW aware of the discriminatory effect of its facially-neutral website, and that CW did not ameliorate those effects, was not sufficient to establish intentional discrimination.
The appellate court next addressed whether an ADA theory of liability could be stated. The court held that it could not conclude that CW’s website constituted a “place of public accommodation,” which is a fundamental requirement under the ADA. The court held that it could not interpret this phrase to include retail websites that had no connection to any physical location or space. It found that the ADA’s statutory language did not include a category that encompassed web-only business sites, and determined that Congress had chosen not to amend the ADA to clarify whether, or identify the circumstances under which such a website would constitute a “place of public accommodation.” The Martinez appellate court essentially determined that, absent evidence of intentional discrimination, a claim under the Unruh Act will not exist for web-only based businesses.
Therefore, in California web-only businesses may escape the requirements of the ADA, at least until Congress clarifies whether a “place of public accommodation” includes web-only businesses, or the DOJ issues written guidance that clarifies when and how such websites must be made accessible to visually impaired persons.
What’s the import of the Martinez decision?
Whether the Martinez decision will have long-acting effect is uncertain. Martinez has filed a petition for review with the California Supreme Court and review may, or may not, be granted. Further, pressure on the DOJ to issue meaningful guidelines on website accessibility requirements under the ADA will likely grow. The DOJ has promised to issue clarifying regulations for years, but it is a promise it has failed to fulfill. While the DOJ did issue further regulations on website accessibility in March 2022, these regulations are general in nature, which lack the necessary detail or substantive compliance requirements that would clarify how, and under what circumstances, websites must be made accessible for visually impaired persons.
Similarly, in February 2021, the U.S. House of Representatives introduced HR1100, which proposed to adopt certain privately established Web Content Accessibility Guidelines (“WCAG”) as the applicable legal standard (and also require a litigant to first give notice to the non-compliant website and provide an opportunity to cure an access deficiency before a lawsuit could be filed). However, HR1100 has never moved out of committee to the House for a vote, nor is there any estimated timeline for the bill to be considered.
While there may be a respite from web-only accessibility lawsuits in California for the time-being, businesses nonetheless should take the initiative to develop, construct and maintain their websites to provide such accessibility to visually-impaired individuals as can reasonably be provided. Taking this step now will be beneficial in two ways. First, attracting and maintaining the business of visually impaired persons is economically beneficial to businesses. Second, businesses will be prepared when WCAG or other guidelines are adopted by Congress or DOJ. Reputable website designers are now familiar with WCAG guidelines and the barriers that exist for visually impaired persons when trying to navigate through websites and purchase products and services. Businesses should not be caught flat-footed and only respond when the law catches up with the realities of the day. Instead, your business would be wise to take the review and upgrade your website, if necessary, and minimize exposure to future ADA-accessibility lawsuits.