California Appeals Court Holds Online-Only Businesses Are Not Subject to ADA - Further Divides Courts Regarding Website Accessibility

Ruth A. Rauls, Rob Duston

By now, business owners and their counsel have become increasingly aware of the high volume of lawsuits filed across the country alleging that commercial websites violate Title III of the Americans with Disabilities Act (ADA), and similar state and local laws, for failing to make their websites equally accessibility to individuals with disabilities. Typically, such claims are raised by individuals with visual or hearing impairments citing the failure of a website to meet voluntary guidelines (e.g. WCAG 2.1).

These suits have proliferated in virtually every industry, including restaurants, hotels, retail, colleges and universities, and CBD. Click here to read our previous blog post about the impact of accessibility lawsuits on the CBD industry. While these cases have been filed throughout the U.S., there has been a particular explosion in the federal courts for the Southern and Eastern Districts of New York and the Southern District of Florida. However, business owners outside of those states still find themselves being hauled into court in these locations because their website is available to users throughout the country. California state and federal courts have long been a hot spot for all types of accessibility cases because under a state law (the Unruh Civil Rights Act), a violation of the ADA is a state violation and entitles plaintiffs to statutory damages. 

On August 1, 2022 a California appeals court effectively shut down these claims under state law, at least with respect to businesses that only operate online.

In the case Martinez v. Cot’n Wash, Inc., a California appeals court was asked to consider two questions: (i) does a facially neutral website purposely discriminate against individuals with disabilities in violation of California’s Unruh Act; and (ii) does a business that only operates online constitute a “place of public accommodation” in order to be covered by the ADA.

The court found in favor of the business on both questions, affirming that under California law a business cannot be found to have purposely discriminated against an individual on the basis of their disability when the alleged discrimination is “facially neutral.” The court found that where a website design is “facially neutral”, failure to take affirmative steps to make it accessible cannot be considered to discriminate against individuals on the basis of their disability when everyone has access to the same website.

The more precedential holding was that businesses that only operate online are not subject to the ADA. The court gave an exhaustive review of the split among various federal courts, the ADA legislative history and the shifting positions of the U.S. Department of Justice. The court concluded that Title III of the ADA only applies to “places of public accommodation,” because a website is not itself a “place.” The court distinguished claims involving website that support or are connected to a place of public accommodation with a physical location. . 

The court’s opinion is consistent with a prior decision of the Ninth Circuit Court of Appeals (the federal appeals court for most of the West Coast, Alaska and Hawaii), which itself has held that internet-only businesses do not constitute a place of public accommodation.

It is expected that Plaintiff will ask the California Supreme Court to review this opinion.

The case is Martinez v. Cot’n Wash, Inc., Case No. B314476 in the Court of Appeal of the State of California, Second Appellate District.

What Now?

This decision should result in a decrease in claims in California state and federal courts against online-only businesses. Even with this victory in hand, business owners should not anticipate the number of website accessibility lawsuits to decrease. Courts across the country have been split on the questions of whether and when a website lack of accessibility can violate the ADA, with different jurisdictions establishing different “tests” to determine if a website is covered.

Because commercial websites are generally available to individuals across state lines, there is significant risk that nearly every business, of every size, will be required to face one or more of these lawsuits. The best step a business can take to try to avoid this from happening is to ensure its website is equally accessible to individuals with visual or hearing impairments. The most common way of achieving this being to ensure that the website complies with the World Content Accessibility Guidelines (WCAG). Business owners should be wary of software and overlays that promise WCAG compliance through a quick or cheap fix, that does not involve manual coding and testing. They also need to focus on their agreements with any IT vendor or host, and require reporting of the level of accessibility. Unlike structural barriers, making and keeping a website accessible is not a one-time fix.  

If you or your business have any questions regarding the website accessibility, or compliance with federal and state accessibility laws, please do not hesitate to reach out to your Saul Ewing attorney.

Ruth A. Rauls
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