By Kristina M. Launey

The Ninth Circuit Court of Appeals recently held that a plaintiff must show intentional, willful, affirmative discriminatory action by a public accommodation to prevail on a claim for violation of California’s Unruh Act (one of the state’s ADA Title III-corollary statutes). There are actually two avenues through which a plaintiff can establish an Unruh Act violation: (1) showing that the ADA has been violated (for which intentional discrimination is not required), or (2) showing intentional discrimination (which requires a heightened burden and factual showings).  In this case, Greater Los Angeles Agency on Deafness et al. v. Cable News Network, Inc., the plaintiffs did not plead that there was a violation of the ADA. Thus, the court considered the Unruh Act claim only on the intentional discrimination ground.

As such, this decision, while informative, has limited applicability, and businesses should proceed with caution. For California businesses that are not public accommodations covered under the ADA, this decision is good news: as long as the business has not engaged in an intentional act, it is not liable under the Unruh Act. What would be such a business?  The only one that comes to mind is an online business that has no nexus to a physical location.  Contrary to some other circuits, the Ninth Circuit has held that a business’ website must have a nexus to a physical place of business in order to be a public accommodation under the ADA.  (See our previous report on Cullen v. Netflix, which held, relying on earlier Ninth Circuit precedent, that a video streaming website is not covered by the ADA because it is not an actual physical place; and on subsequent cases from within the Ninth Circuit holding websites not connected to “physical spaces” are not covered by the ADA.)  This may well be why the plaintiffs in this case did not assert an ADA claim and proceeded instead under the intentional discrimination prong of the Unruh Act.

This decision arose from CNN’s motion to strike a lawsuit in which the Greater Los Angeles Agency on Deafness, Inc. (“GLAAD”) alleged that CNN violated the Unruh Act and the Disabled Persons Act (“DPA”) by intentionally excluding deaf and hard of hearing visitors from accessing videos on through its failure to provide captioning for the videos. GLAAD requested damages, declaratory relief, fees and costs, and a preliminary and permanent injunction “requiring [CNN] to take steps necessary to ensure that the benefits and advantages offered by are fully and equally enjoyable to persons who are deaf or have hearing loss in California.”  Prior to filing suit, GLAAD had asked Time Warner to caption all of the videos on its news web sites, including  CNN responded that it would comply with whatever requirements the Federal Communications Commission (“FCC”) would impose under the new 21st Century Communications and Video Programming Accessibility Act (“CVAA”) rules.

The district court denied CNN’s motion to strike the complaint in its entirety.  CNN appealed to the Ninth Circuit.

The Ninth Circuit found that GLAAD had failed to establish a probability of success on its Unruh Act claims, which require a showing of intent.  The Unruh Act entitles disabled persons “to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.” But, as the court noted, the Unruh Act “does not extend to practices and policies that apply equally to all persons” and requires a showing of intentional, willful, affirmative discriminatory action by a public accommodation. A plaintiff must show more than disparate impact of a facially neutral policy.

The court found “[n]otably absent from the record is any evidence supporting an inference that CNN intentionally discriminated against hearing-impaired individuals on account of their disability.  That hearing impaired individuals bore the brunt of CNN’s neutral policy is insufficient to support an Unruh Act claim.”  In other words, a neutral policy that has an adverse impact on people with disabilities is not enough to show the intentional discrimination required by the Unruh Act.  There must be a difference in treatment.  The court found no such difference in treatment and noted that CNN’s active participation in the FCC’s rulemaking process and its stated intention to comply with the FCC’s 2012 captioning rules was evidence of lack of  discriminatory intent.

The Ninth Circuit did not rule on the DPA claim.  Noting that the question of whether the DPA applies to websites is an important question of California law and of significant public concern, the court deferred decision on GLAAD’s DPA claim pending further guidance from the California Supreme Court, and certified the issue to the California Supreme Court.  CNN argued that a “place of public accommodation” under the DPA does not include websites. GLAAD contended that, considering the importance of the Internet in contemporary life, is a “place” within the meaning of the act.  As the court noted, “[n]umerous recent cases have discussed the DPA’s applicability to virtual spaces like websites, but there is no conclusive California authority on point… Since the Internet is increasingly ubiquitous in daily life, and this question is likely to recur, we respectfully request that the California Supreme Court resolve the issue.”  This too is an important issue, which we will follow.

Edited by Minh N. Vu