On August 1, 2022, the California Court of Appeals issued an opinion that will put a stop to website accessibility discrimination cases against online-only businesses brought pursuant to the state’s Unruh Act. The case, Martinez v. Cot’n Wash, Inc., clarified that websites standing alone are not places of public accommodation under Title III of the Americans with Disabilities Act (ADA).
The Unruh Act provides that “[a]ll persons within the jurisdiction of this state . . . no matter what their . . . disability . . . are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.” Cal. Civ. Code § 51. Under the Unruh Act, there are two ways to demonstrate a violation: (1) by proving intentional discrimination, or (2) by proving a violation of Title III of the ADA. Title III of the ADA, of course, applies to places of public accommodation, which are explicitly defined by an exhaustive list of twelve categories of entities—none of which are websites. See 42 U.S.C. § 12181(7)(A–L).
For years, plaintiffs with disabilities such as significant vision impairment have brought lawsuits in California against businesses, including online-only businesses, alleging that a website which is not compliant with an accessibility standard (such as the Web Contact Accessibility Guidelines (WCAG) Level 2.1, AA) violates Title III of the ADA and therefore also violates the Unruh Act. Despite a 2019 Ninth Circuit ruling (Robles v. Domino’s Pizza, LLC, 913 F.3d 898, 905–06 (9th Cir. 2019)) which clarified that a website must have a nexus to a brick-and-mortar location that is covered under Title III in order for the website to constitute a place of public accommodation, lawsuits in California had continued to proliferate. This was because under California state law, it was unclear whether a website standing alone qualified as a “place of public accommodation.” In effect, the Martinez ruling brings state law more closely in alignment with the Ninth Circuit’s interpretation of the ADA.
The Martinez court acknowledged that while “facilitating access to retail websites would serve the goals of the ADA,” it found that it could not read into the statutory language of the ADA that which is not there: a definition of “place of public accommodation” that includes websites. The court further took into consideration the fact that Congress and the Department of Justice (DOJ), in the face of confusion and a deep circuit split, have had decades to clarify whether websites are places of public accommodation, but have declined to officially do so; indeed, by their inaction, the court found that both entities had “tacitly rejected” that websites are places of public accommodation.
As reported previously, the uncertainty in this area of the law and a lack of administrative or congressional action has led to an explosion in litigation in jurisdictions such as the Southern District of New York, the Western District of Pennsylvania, and California state courts. The Martinez case represents a positive step toward clarifying the obligations of entities who conduct business online under the ADA and complementary state laws. However, if your business does not fall into this category, it is always a good idea to take proactive steps to remediate any website that is substantially out of compliance with the latest WCAG standards. This includes establishing a process to test and monitor accessibility of the website and its content moving forward. Unless and until we receive additional guidance from Congress, the DOJ, or the U.S. Supreme Court, taking these proactive steps may be the best way to avoid being hit with litigation in this area.
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