Standing and website discrimination: Square peg in a round hole

Most major businesses in California and elsewhere have an online presence. But, some businesses do not know that courts across the nation have required that their websites (not to mention other digital platforms, including apps) must comply with the Americans With Disabilities Act and analogous state law so that visually impaired users can access those sites.

A recent decision by the California Supreme Court has provided broad standing for state Unruh Civil Rights Act claims against allegedly discriminatory websites. Though the California Supreme Court did not directly address ADA or Unruh Civil Rights Act website compliance, the court's analysis on standing may open the floodgates for such disability discrimination claims. In the past, California courts required plaintiffs to show that an allegedly discriminatory website prevented their full use and enjoyment of a connected brick-and-mortar location. However, the ruling provides standing for discrimination claims based on an individual's mere intent to use a website's services, regardless whether the individual actually attempted to use the website to purchase products or services at a physical location.

White v. Square: No Attempt to Purchase Necessary for Standing Under Unruh.

In White v. Square, Inc., 2019 DJDAR 7552 (Cal. Aug. 12, 2019), a payment processing website included in its terms of service that users "will not accept payments in connection with" the business activities of "bankruptcy attorneys or collection agencies engaged in the collection of debt." An attorney who wanted to use Square's services in connection with a bankruptcy practice brought an action in the district court against the payment processor for discrimination under the Unruh Civil Rights Act because Square barred such a use of its product.

The district court dismissed the complaint for lack of standing because the plaintiff did not actually transact business with the defendant. The plaintiff appealed to the 9th U.S. Circuit Court of Appeals, which certified for the Supreme Court of California the narrow question of whether the Unruh Civil Rights Act provides standing to a plaintiff who intended to transact with an online business, but did not actually do so. The California Supreme Court concluded that the broad preventative and remedial provisions of the Unruh Civil Rights Act extended standing to such a plaintiff. Notably, the act does not specifically bar occupation-based discrimination and the court did not address whether the plaintiff was a member of a protected class or whether the website discriminated against him based on his occupation.

In reviewing the question of standing only, the California Supreme Court drew parallels between the alleged discriminatory provisions of the website's terms of service and discriminatory practices meant to discourage individuals of certain races from applying for employment. The court determined that an individual allegedly targeted by a discriminatory policy is not required to "engage in a futile gesture" of carrying out a transaction in the face of discrimination in order to have standing under the Unruh Civil Rights Act. Instead, an individual bringing a claim against an online business must allege that the individual visited the website, encountered discriminatory terms, and intended to make use of the business's services. The court also noted that it disagreed with the California Court of Appeal decision in Surrey v. TrueBeginnings, LLC, 168 Cal. App. 4th 414 (2008). In that case, the Court of Appeal dismissed an Unruh claim for gender-based price discrimination against a matchmaking website that offered certain free services to women but not men. According to the Court, the plaintiff did not have standing because he did not actually purchase services from the website.

Websites that Do Not Comply with the ADA and Unruh May Face a Wave of Discrimination Claims under California and Federal Law

Although the California Supreme Court's ruling addressed allegedly discriminatory terms of service and not claims based on visual or other impairments, the decision may have implications for website accessibility claims more broadly. For example, the language of the opinion suggests that visually impaired individuals who visit a noncompliant website with the intent to make use of the website's services may have sufficient standing to bring claims for violation of the Unruh Civil Rights Act, even if the individual does not take action to use the website's services. California defendants in website-discrimination cases had previously asserted lack of standing as a defense to both ADA and Unruh claims. See, e.g., Rios v. N.Y. & Co., 2:17-cv-04676-ODW(AGRx) (C.D. Cal. Nov. 16, 2017). While strict Article III standing requirements may still eliminate some website discrimination claims, we can anticipate more Unruh-based claims will survive standing challenges and may be remanded to California state court for adjudication.

The statutory damages of $4,000 per Unruh violation initially may not ring the alarm bells of commercial website owners, Section 55 of California's Disabled Persons Act provides a fee-shifting clause that the prevailing plaintiff is "entitled to recovery reasonable attorney's fees." The California Supreme Court has upheld an award in excess of $100,000 for attorney's fees for claims brought under the ADA, Unruh Act, and Disabled Persons Act. See Jankey v. Lee, 55 Cal. 4th 1038 (Cal. 2012).

The broadened standing for Unruh website claims will, hopefully, remain subject to the courts' authority to prevent abuse. Recently in Florida, a federal court sanctioned counsel and a serial ADA plaintiff for "filing numerous frivolous claims," "misrepresent[ing] billable time expended to litigate," and "improperly shar[ing] attorneys' fees, ... without regard to the interests of those with disabilities." See, e.g., Johnson v. Ocaris Management Group Inc., 18-cv-24586-PCH, Johnson v. 27th Avenue Caraf, Inc., 18-cv-24472-JEM (S.D. Fla. Aug. 23, 2019). Hopefully the courts in California will stand firm in protecting business owners against litigation found to be meritless and abusive.

The White v. Square decision drives home the importance of ensuring that commercial websites are compliant with both the ADA and state law. While there continue to be serious questions as to what standard should be used to establish compliance, many companies have turned to the Web Content Accessibility Guidelines (WCAG) 2.0 guidelines (which government websites must comply with under Article II of the ADA and section 504 of the Rehabilitation Act) to demonstrate that their websites provide sufficient accommodations to allow visually impaired individuals to participate equally in their websites' products and services. 