Court of Appeal rules website must be equally accessible to the blind

A business website that was inaccessible to the visually impaired violated the Unruh Act and the Americans With Disabilities Act, a California appellate court has ruled, adding to a growing body of case law involving website accommodations.

In doing so Tuesday, the 2nd District Court of Appeal upheld a trial court's summary judgment and injunction against the owner of Whisper Restaurant and Lounge in Los Angeles.

Christian Danielson of the National Federation of the Blind said website accommodations for people with disabilities has become crucial for functioning in everyday life.

"This affects people's jobs, education, and participation in their community," Danielson said.

In the 2nd District's case, plaintiff Cheryl Thurston said she could not use Whisper's website to get a reservation or see the menu.

The restaurant said she could communicate with them by email or telephone. Thurston v. Midvale. 2019 DJDAR #8559 (Cal., Sept. 03, 2019).

The Court of Appeal said those accommodations were insufficient, in part because a website is accessible 24 hours a day, seven days a week.

There is currently a three-way federal circuit split over when a business website must be compliant with Title III of the disabilities act, which regulates places of public accommodation.

The 3rd Circuit excludes websites from coverage because it deems them not a public accommodation. Other circuits, including the 1st, 2nd and 7th, hold that websites are public accommodations and, therefore, covered by the federal law.

The 9th Circuit has held that websites are covered by the act only if there is a nexus between the website and access to a physical place of public accommodation. Robles v. Domino's Pizza, LLC, 2019 DJDAR 416 (9th Cir. 2019).

A source of confusion is the lack of guidance on how websites can comply with the act.

The U.S. Department of Justice has not promulgated rules on the matter and so courts have created standards for compliance. A consequence of this has been an explosion in litigation, some lawyers say.

"Website accessibility cases are relatively new." said Dick A. Semerdjian of Schwartz Semerdjian Cauley & Moot LLP.

In response to the increased litigation, the Federation for the Blind put out Resolution 2019-09, saying, "A small group of plaintiffs and attorneys are exploiting the situation by filing dozens, occasionally hundreds, of lawsuits all at once or in rapid succession."

On the other side, Stephanie Sheridan of Steptoe & Johnson LLP said she has seen complaints where the business being sued doesn't even sell the product the plaintiff cites.

John B. Lewis of Baker & Hostettler LLP commented, "Lack of any clear standards tends to help the plaintiff bar that want to file these cases. And it thwarts the good faith compliance that many, many ... I mean most enterprises, restaurants, retailers, they want to have more customers. They appreciate the need to make themselves accessible."

Private organizations like the Web Content Accessibility Guides have tried to solve the problem by issuing guidelines for compliance.

Sheridan called them "suggestions of what a quality website might look like."

Scott Ferrell of Pacific Trial Attorneys said those guidelines "have become the de facto standard -- similar to the 'reasonable person' standard under tort law."

But more concrete guidance could be forthcoming.

Dominos appealed the 9th Circuit decision and the Supreme Court will decide whether to resolve the circuit split at its conference in October.

"At this point, the U.S. Supreme Court is the only way ... because of what we've seen from Congress, there really isn't an appetite to take this on." Lewis said.