Website accessibility: Martinez v. Cot’n Wash gets it wrong

More than 30 years after the Americans with Disabilities Act was signed into law, the disability community is still waiting for the vision of full inclusion to be realized. It's a simple concept: people with disabilities should be included in every aspect of community life. Housing, voting, shopping, recreation, all of it. Instead, state and federal courts continue to engage in sophistry and tortured reasoning to limit the clear intent and application of the ADA.

The latest debate centers on website accessibility. No one can dispute that the internet is a fundamental part of community life. When Covid hit, it became clear that distance learning and working from home over the internet were essential.

Despite acknowledging that modern life includes the internet, Division One of the Second Appellate District of California recently decided that a person with a disability was not entitled to the protection of the Unruh Act, or the Americans with Disabilities Act (ADA), in his use of a commercial website. Martinez v. Cot'n Wash, (2022) B314476.

In Martinez, the plaintiff, who was represented by Victoria Knowles and the Pacific Trial Attorneys, attempted to use the Cot'n Wash website to order cleaning products. As the defendant's website was not accessible for his screen reader, the plaintiff filed a complaint for discrimination under California's Unruh Act.

Civil Code section 51 et seq prohibits discrimination against protected classes, including people with disabilities. The disparate impact of a facially neutral policy requires proof of intentional discrimination under Unruh. Koebke v. Bernadino Heights Country Club, (2005) 36 Cal.4th 824. However, if discriminatory conduct also constitutes a violation of the ADA, then no intent is required. California Civil Code §51(f).

Martinez analyzes both potential bases of liability. The Unruh analysis rests on the premise that the Cot'n Wash website was a "facially neutral policy," thereby requiring proof of intentional discrimination under Koebke v. Bernadino Heights Country Club, (2005) 36 Cal.4th 824. In its view, the plaintiff's pleadings did not meet this standard of intention. One of the flaws in the court's reasoning is that a website is not a policy, it is a service or product.

In fact, Koebke does not strictly support the result in Martinez. That court merely held that the disparate impact of a facially neutral policy, without more, was not sufficient to find a violation of the Unruh Act. Since there was no facially neutral policy in Martinez, the Koebke analysis is inapposite.

Moreover, as the Koebke plaintiffs alleged additional facts, including the defendant's knowledge of the discrimination, the supreme court remanded the case for further proceedings. Plaintiff Martinez made similar allegations, including correspondence from the defendant which tended to prove the defendant's knowledge of discrimination.

Ms. Knowles adds that intentionally excluding only the blind cannot be facially neutral because it only applies to one portion of the public. She points out that no one would seriously argue that a set of steps was "facially neutral" because the building owner had no intent to keep out wheelchair users.

Addressing the application of the ADA, the court reviews the current split in the federal circuits regarding website accessibility and Title III of the ADA. In the First, Second, and Seventh circuits, websites have been held to be places of public accommodation, and subject to ADA enforcement. In the Third, Sixth, Ninth and Eleventh circuits, the courts have held that a website can be subject to ADA scrutiny if there is a sufficient connection, or nexus, to a physical "place".

Plaintiff Martinez argued that Cot'n Wash's website was a "place of public accommodation." Cot'n Wash is an online retailer with no brick-and-mortar store for its products. Therefore, they argued, it was not a place of public accommodation under Title III, because the website is not a physical "place."

Although the terms of the ADA do not require that discriminatory conduct originate from a physical place, the appellate court agreed with the defendant and confirmed the dismissal of the ADA argument because it believed the website was not connected to a "place of public accommodation."

Attorney Knowles argues there are several errors in the Martinez ADA analysis, including the arbitrary results which will ensue, and a failure to give sufficient deference to the Department of Justice's long held position that websites are subject to ADA oversight.

The ruling indicates that any retailer with a brick-and-mortar location will have to comply with ADA accessibility rules, and be subject to enforcement actions, including small businesses. Online companies like Cot'n Wash, no matter how prosperous, would be free to maintain discriminatory websites without consequences.

In Carparts Distribution Center v. Automotive Wholesaler's Assn. (1st Cir. 1994) 37 F.3d 12, 19-20, the court observed: "It would be irrational to conclude that persons who enter an office to purchase services are protected by the ADA, but persons who purchase the same services over the telephone or by mail are not..."

In contrast to its finding that a website is not a place, Martinez quotes the U.S. Supreme Court's reference to "cyberspace" as the most important "place" for the exchange of views in modern life. Packingham v. North Carolina (2017) 582 U.S. __ [198 L.Ed.2d 273, 137 S.Ct. 1730, 1735]. It seems that the plain meaning of the word place is not as straightforward as they suggest.

Ms. Knowles contends that intentionally excluding only the blind cannot be a facially neutral policy. She points out that no one would seriously argue that a set of steps was "facially neutral" because the building owner had no intent to keep out wheelchair users.

"We are disappointed with the appellate court's decision, and our client is disappointed," said Knowles. "The application of this opinion will have a disparate impact on people with disabilities. The website provides a service and as such needs to be fully accessible to all. We intend to file a petition for review by the California Supreme Court, and we are hopeful that our petition will be granted."