By Carl I.S. Mueller, Esq., The Maloney Firm, APC

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As many small business owners are aware, there has been a rash of cases filed in California suing business owners for violations of the Federal American with Disabilities Act (“ADA”) and California’s Unruh Civil Rights Act (the “Unruh Act”), arising from alleged barriers to access by those with disabilities. These lawsuits oftentimes force defendants to pay settlements to frequent-filer plaintiffs over, often-times, extremely technical violations of the statutes. The ADA and Unruh Act both apply to a business’ physical location as well as its website.

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Holding

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Following several Federal Circuit Courts, the California Court of Appeal ruled in Martinez v. Cot’n Wash, Inc., that the ADA and Unruh Act only apply to websites that maintain a “connection to a physical space,” i.e., websites for brick-and-mortar businesses.  The ADA and Unruh Act regulate places of “public accommodation,” requiring that they are equally accessible to those with disabilities. However, after substantial legal analysis, the Court of Appeal concluded that a website that does not correlate to a brick-and-mortar business is not a public accommodation. Thus, unless a website for an online-only retailer is intentionally discriminatory, its operator cannot be sued in California for failing to provide adequate accessibility for disabled.

 

Background

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Defendant Cot’n Wash is an online retailer of cleaning products. Cot’n Wash does not “offer any products and services at any physical location, or in any manner other than through its website.” Plaintiff Abelardo Martinez, Jr. (who is now deceased) was a blind man who allegedly attempted to utilize Cot’n Wash’s website but could not do so due to his disability. Pacific Trial Lawyers is a law firm that files many ADA and Unruh act cases, and they represented Martinez in this case alleging that Cot’n Wash’s website lacked programming to make it compatible with Martinez’ screen reader software. Martinez alleged that this constituted a “policy and practice to deny blind users […] equal enjoyment of and access to the website.”

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Cot’n Wash challenged Martinez’ First Amended Complaint via demurrer, asserting that Martinez failed to state a claim because Cot’N wash lacked a brick-and-mortar location. The trial court agreed with Cot’n Wash, sustaining the demurrer without leave to amend.

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The Appeal

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The Court of Appeal affirmed the ruling on demurrer. As a matter of law, the effects of a facially neutral policy, such as a website that is not intentionally programmed to deny accessibility to blind users, cannot be the basis of a violation of the Unruh Act. Therefore, the only pathway to liability for Martinez was a finding that Cot’n Wash’s website was a public accommodation.

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However, following the Third, Sixth, Ninth, and Eleventh Federal Circuit Courts, the Cal. Court of Appeal held that “websites are not public accommodations under the ADA, but a denial of equal access to a website can support an ADA claim if the denial has prevented or impeded a disabled plaintiff from equal access to, or enjoyment of, the goods and services offered at the defendant’s physical facilities.” While this decision does not settle the split between the Federal Circuit Courts (the First, Second, and Seventh Circuits hold that websites are public accommodations), it does resolve the issues in California’s state courts. In California, online-only retailers are free from liability under the ADA and Unruh Act for failing to make their websites accessible.

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The Takeaway

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Overall, all business owners, including online-only businesses, should continue to strive for accessible physical and online facilities. It is good business, as a more accessible business allows for more customers. Further, businesses in California with a brick-and-mortar presence must avoid ADA and Unruh Act liability. Sadly, the highly technical requirements of the ADA and Unruh Act means most business will be unable to ensure they are incompliance without the aid of outside professionals. However, Certified Access Specialists (“CASp”) and various web design professional exist to offer inspection, design, and compliance services to help business owners comply with the requirements of the ADA and Unruh Act.

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About the Author:

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Carl I.S. Mueller is a business litigation attorney that represents clients in all phases of civil litigation. Mr. Mueller’s practice has a focus on attorney-client disputes of all kinds. If you have questions regarding this article contact Carl Mueller at cmueller@maloneyfirm.com.

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