Websites must be accessible, buildings aren’t substitute

Brick-and-mortar businesses must ensure their websites are reasonably accessible to people with disabilities, according to the 4th District Court of Appeal.

In the case underlying Friday's opinion, Abelardo Martinez, who is blind, sued San Diego County Credit Union in 2017 for not implementing compatible software for his screenreader, in violation of the Americans with Disabilities Act. Martinez argued he was discriminated against based on the website's barriers, not at one of the institution's buildings. The lawsuit sought an injunction requiring the company to make its website accessible to visually-impaired people. Martinez v. San Diego Credit Union, 2020 DJDAR 6113 (S.D. Super. Ct., June 19, 2020).

The credit union was also ordered to pay Martinez's costs for the appeal.

San Diego County Judge Ronald F. Frazier dismissed the suit in 2018, granting the credit union's motion for nonsuit just before trial. The website wasn't subject to the federal Americans with Disabilities Act or the state's Unruh Civil Rights Act, as those only apply to a place of public accommodation, the judge concluded.

An appellate panel of Justices Judith L. Haller and Judith McConnell, with Justice William Dato concurring, reversed Frazier on Friday.

"Although the courts have not yet articulated a single clear standard on this issue, most federal circuits and one California court of appeal have held a disabled plaintiff can state a viable ADA claim for alleged unequal access to a private entity's website if there is such a sufficient nexus between the claimed barriers and the plaintiffs' ability to use or enjoy the goods and services offered at the defendant's physical facilities," the panel stated.

When the federal disabilities act passed in 1990 there were no such things as websites, and the act applied to places of physical areas where people might gather. Since the dawn of the Internet, courts have wrestled with the question of whether Congress could have included a website as a place of physical accommodation when it drafted the law.

A majority of federal circuits including the 9th U.S. Circuit Court of Appeals found it wasn't so much that a website itself is a place of physical accommodation, but 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, the appellate opinion noted. Robles v. Domino's Pizza LLC, 2019 DJDAR 416 (9th Cir. 2019).

Some federal circuits have found that a website constitutes a public accommodation whether or not it has a nexus to the company's physical location, and includes providers of services that don't require a person to enter a physical location, including Amazon.

The panel's opinion eliminated any uncertainty about whether the disabilities act and the Unruh Act apply to websites of companies that maintain a physical presence in California, according to Martinez's attorney Scott J. Ferrell, founding partner at Pacific Trial Attorneys.

"The court clearly telegraphed that the nexus requirement is on life support in California," said Ferrell. "When presented with the opportunity, the California Supreme Court will hammer the final nail in its doctrinal coffin and it will go the way of 'separate but equal.'"

The opinion also cited Thurston v. Midvale, 2019 DJDAR 8559 (Cal. App. 2nd Dist., Sept. 3, 2019), which found that a business website that was inaccessible to the visually-impaired violates the Unruh Act and the federal law. Ferrell was the lead plaintiff counsel in Thurston.

The credit union "could have settled this matter without paying a single penny by doing the right thing and just fixing its website," he commented. "This is an important victory for disabled consumers everywhere. Since California law often creates the de facto standard of accessibility, this decision will benefit consumers across America."

Gregory F. Hurley, partner at Sheppard Mullin, Richter & Hampton LLP, represented the credit union. He could not be reached for comment Monday.