By Minh N. Vu
Seyfarth Synopsis: The California Court of Appeals decision that put an end to lawsuits against online only businesses in California and called out DOJ and Congress for inaction stays put after California Supreme Court denied plaintiff’s review request.
Update: On November 9, 2022, the California Supreme Court denied plaintiff’s request that the Court review the California Court of Appeals precedent setting, 35-page opinion, that closed the door on California lawsuits brought against online only businesses, agreeing with the U.S. Court of Appeals for the Ninth Circuit that websites are not “public accommodations” covered by Title III of the ADA. It also held that creating and maintaining an inaccessible website cannot constitute intentional discrimination under the Unruh Act.
The blind plaintiff in Martinez v. Cot’n Wash, Inc. alleged that the online only retailer had engaged in disability discrimination in violation of California’s Unruh Act by having a website that he could not use with his screen reader software. There are two ways to establish a violation of the Unruh Act: prove (1) intentional discrimination; or (2) a violation of Title III of the ADA. Martinez claimed that he had alleged sufficient facts to establish a violation under both theories.
Martinez struck out on both counts.
With regard to the intentional discrimination theory, Martinez argued that the retailer’s failure to take action in response to his demand letters complaining about the website’s accessibility barriers constituted intentional discrimination. The Court disagreed, reiterating that “[a] claimant may not “rel[y] on the effects of a facially neutral policy on a particular group… to infer… a discriminatory intent.” The Court also said that “a failure to address known discriminatory effects of a policy” is not sufficient to establish intentional discrimination under the Unruh Act.
As for Martinez’s claim that the online-only retailer had violated Title III of the ADA, the Court opined that “even after examining the language of the statute and considering maxims of statutory interpretation and legislative history pre-dating passage of the law, we remain without a clear answer as to whether a purely digital retail website can constitute a ‘place of public accommodation’ in the context of Title III.” The Court thus turned to what it called “the third and final step in the interpretive process.” The Court explained:
In this phase of the process, we apply reason, practicality, and common sense to the language at hand. Where an uncertainty exists, we must consider the consequences that will flow from a particular interpretation. Based on such an analysis, we ultimately find dispositive that adopting Martinez’s proposed interpretation of “place of public accommodation” would mean embracing a view that Congress (through its inaction since the enactment of the ADA) and the DOJ (through its unwillingness to draft regulations) have both tacitly rejected.
The Court observed that since 2010, Congress and the DOJ recognized the need to address through legislation or regulations whether and under what circumstances a website constitutes a “place of public accommodation” but chose to do nothing, suggesting that neither the DOJ nor Congress “officially endorses” the coverage of websites by the ADA. The Court stated that:
Congress’s failure to provide clarification in the face of known confusion—and, to a lesser extent, the DOJ’s similar failure—is not a reason for us to step in and provide that clarification. To the contrary, it is a reason for us not to do so. This is particularly true, given that providing clarification in the manner Martinez requests could have sweeping effects far beyond this case, none of which has been the subject of legislative fact-finding.
In short, the Court said it was not its place to “adopt an interpretation of the statute that is not dictated by its language, especially in the face of… legislative and agency inaction.”
Martinez will likely file a petition for review by the California Supreme Court, but that court’s review is entirely discretionary and less than five percent of petitions are granted. Thus, this decision will likely stand as binding precedent on all California trial courts.
The significance of this decision for online only businesses cannot be overstated. It means that plaintiffs cannot successfully sue them for having inaccessible websites in California state or federal courts. As discussed, the U.S. Court of Appeals for the Ninth Circuit has long held that a website is not a place of public accommodation covered by Title III of the ADA. This decision will certainly reduce the number of lawsuits brought in California state and federal courts by plaintiffs enticed by under the Unruh Act’s $4,000 minimum statutory damages provision.
The data underscores the importance of this decision. Relatively few website accessibility lawsuits have been filed in California federal court – most likely because of the Ninth’s Circuit’s position on online only businesses. California plaintiffs have favored state court where a few judges, until now, were willing to allow suits against online only businesses and even found that having an inaccessible website could constitute intentional discrimination under Unruh.
Businesses must keep in mind, however, that this decision has little impact on claims relating to websites that have a nexus to a physical facility where goods and services are offered to the public. Such websites would likely be considered a benefit or service of a brick and mortar place of public accommodation, and be covered by Title III’s non-discrimination mandate.
MARCH 2023 UPDATE: The Martinez decision has already had an impact on website accessibility lawsuits pending in California Superior Court against online only businesses. For example, in Licea v. PTC Therapeutics, the court dismissed the lawsuit based on Martinez. The court held that the defendant pharmaceutical company is not a public accommodation covered under Title III of the ADA because it has no physical location where goods and services are provided. Accordingly, the plaintiff could not establish an Unruh Act violation by proving a violation of the ADA. The court also concluded, relying again on Martinez, that having an inaccessible website is not intentional discrimination under the Unruh Act, even where the defendant has been advised of accessibility barriers on the website.
Edited by Kristina M. Launey