Ruling makes ADA visual web-access claims a bit clearer

An Americans with Disabilities Act web-access case went to trial and the result rested on a creative and legally accurate jury instruction. Typically, trial counsel avoid experimenting with jury instructions because it enhances the opportunity for reversal on appeal. So, counsel often stay true to published jury instructions.

But in Cheryl Thurston v. Omni Hotel Management Corp., 2021 DJDAR 10106, a hotel prevailed in a jury trial in which Thurston claimed that Omni Hotel's website was inaccessible to those with disabilities. The victory is significant because there are thousands of cases filed each year alleging websites violate the ADA and California's Unruh Act (a civil rights act that provides protection from discrimination by all business establishments in California) because the website cannot be read by screen readers used by the visually impaired.

By way of a special jury verdict, the jury rejected Thurston's claim and found that she never intended to make a hotel reservation or ascertain Omni's prices and accommodations for the purpose of making a hotel reservation.

On appeal, Thurston contended the trial court erred as a matter of law: (1) by instructing the jury that her claim required a finding that she intended to make a hotel reservation, and (2) by including the word "purpose" in the special verdict form, which caused the jury to make a factual finding as to her motivation for using or attempting to use Omni's Website. The 4th District Court of Appeal affirmed the decision in favor of Omni.

In her complaint, Thurston alleged that Omni discriminated against visually impaired individuals, specifically herself, by denying them full and equal access to Omni's website, as a result of access barriers. She claimed these access barriers deterred her from visiting any of Omni's physical locations and determining whether to stay at such locations. She identified generic categories of issues -- lack of alternative text, empty links, or redundant links -- without specifying which particular issue she actually encountered. Thurston charged Omni with intentional discrimination in violation of the Unruh Act (Section 51(b), (f)), as well as a violation of Title III of the American with Disabilities Act of 1990 (ADA; 42 U.S.C.S. Section 12101 et seq.).

Using a screen reader, Thurston visited Omni's website on multiple occasions in search of a hotel room in Palm Springs or San Diego. While visiting the website, she encountered issues involving the reservation function: One blocked her from moving around in the calendar and another (an image) blocked her from making a reservation. Despite these accessibility issues, Thurston never tried to book a reservation by using a third-party website (i.e., Orbitz, Expedia, Hotels.com, etc.), or by calling Omni directly (her screen reader read Omni's phone number). Moreover, she never looked at any other hotel websites, and she never actually made any hotel reservations during these occasions when she searched for a room.

The parties disagreed on instructing the jury regarding an Unruh Act claim. Thurston proposed alternative special instructions: Special jury instruction No. 1 was based on a violation of the ADA, while special jury instruction No. 2 was based on intentional discrimination. In contrast, Omni proposed one special jury instruction, which required a finding that Thurston had an "intent" to use Omni's "services in the manner in which those services are typically offered to the public." Omni's special instruction No. 1:

To prevail, Thurston must establish:

(1) Thurston is a person with a physical disability;

(2) Omni Hotels is a private entity that owns, leases, or operates a place of public accommodation;

(3) Thurston approached Omni Hotels with the intent of utilizing its services in the manner in which those services are typically offered to the public;

(4) Thurston tendered the purchase price to Omni Hotels;

(5) The place of public accommodation was in violation of an official accessibility standard in effect at the time of construction, or;

(6) Thurston requested the place of public accommodation effectively communicate with her and Omni Hotels refused; and

(7) The violation was personally encountered by Thurston;

(8) The violation denied Thurston full and equal access to a physical place of public accommodation;

(9) Thurston experienced difficulty, discomfort, or embarrassment because of the violation; and

(10) That a motivating reason for Omni Hotels' conduct was Thurston's physical disability.

Thurston took issue with factor three above stating that she had standing to sue because she attempted to book a hotel room but was deterred by the inaccessible website. In other words, she need not present evidence of her intent. Omni rebuffed this by citing California Supreme Court authority White v. Square, Inc., 7 Cal. 5th 1019, 1032 (2019). Therein, the Supreme Court left open the opportunity for a defendant-business to dispute an ADA-plaintiff's factual assertion that they intended to use or sign up for its services. The Court of Appeal noted that the Unruh Act was enacted to prohibit discriminatory conduct by individual proprietors and business entities offering goods and services to the general public. Unruh Act claims are appropriate where the plaintiff was in a relationship with the offending organization similar to that of the customer in the customer-proprietor relationship. For online businesses, the plaintiff must allege that "he or she visited the business's website, encountered discriminatory terms, and intended to make use of the business's services. These requirements are sufficient to limit standing under [the Unruh Act] to persons with a concrete and actual interest that is not merely hypothetical or conjectural." (Citations omitted.)

In blessing Omni's specially crafted jury instruction, the Court of Appeal held that if a plaintiff wants to prevail on an Unruh Act claim, they must present sufficient evidence to overcome the online defendant's argument that they did not actually possess a bona fide intent to sign up for or use its services.

For Thurston to prevail on her Unruh Act claim against Omni, she had to show a "bona fide intent" to book a room. According to Thurston, because the Unruh Act incorporates an ADA violation as an Unruh Act violation (Section 51(f)), claimants are not limited to "clients or customers of the covered public accommodation," their intent or motivation for visiting the covered public accommodation is irrelevant, and they need not prove intentional discrimination. In support of this contention, she argued federal courts have consistently interpreted Title III of the ADA provisions to broadly apply to individuals. For added support, she pointed to Jury Instruction CACI No. 3060, which does not impose an intent requirement as an element of a Title III ADA claim.

In response, the Court of Appeal held that Thurston's argument conflated standing requirements with the merits of her claim. "A litigant's standing to sue is a threshold issue to be resolved before the matter can be reached on the merits." Thurston had standing to assert an Unruh Act claim against Omni. What was unclear was whether her factual allegations could overcome Omni's assertion that she did "not actually possess a bona fide intent ... to use its services." The trial court properly instructed the jurors to make this determination, and they concluded she could not. Accordingly, the Court of Appeal found no error in the jury instruction regarding Thurston's Unruh Act claim or in the special verdict form.

Moral of the story: Take chances on jury instructions where the case law exists to back up your position. 