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No Longer a “Whisper” – California Appellate Court Joins List of Courts to Weigh in on Website Accessibility

In the first decision by a California appellate court addressing the application of Title III of the Americans with Disabilities Act (“ADA”) to websites, the court in Thurston v. Midvale Corp. (Sept. 3, 2019) 2019 WL 4166620, affirmed summary judgment for the plaintiff and held that the ADA, as incorporated by California’s Unruh Act, applies to websites connected to a brick and mortar business.

California’s Court of Appeal for the Second Appellate District declined to adopt the position of the U.S. Court of Appeals for the Third Circuit that the ADA applies only to physical locations. Instead, the court followed the position of the U.S. Court of Appeals for the Ninth Circuit, holding that “including websites connected to a physical place of public accommodation is not only consistent with the plain language of Title III, but it is also consistent with Congress’s mandate that the ADA keep pace with changing technology to effectuate the intent of the statute.” Id. at *6.  Declining to go a step further, the court refrained from holding that a website unconnected to a physical location is similarly subject to the ADA because that issue was not squarely presented.

The court also affirmed the trial court’s order requiring compliance with the Web Content Accessibility Guidelines (WCAG) 2.0, though it made clear that the defendant’s failure to comply with WCAG did not itself violate the ADA. It was merely evidence of the ultimate question – i.e., whether the website was accessible.

Finally, the court rejected the defendant’s argument that providing a telephone number and email address is an acceptable alternative to providing an accessible website, at least where it was undisputed that such options were not monitored 24 hours a day and therefore failed to provide equivalent convenience to a website reservation system.

The plaintiff had sued the owner of The Whisper Lounge, alleging violation of the Unruh Act, Civ. Code § 51, which incorporates as a violation any violation of the ADA. The plaintiff alleged she was unable to use a screen reader to read the menu or make a reservation on The Whisper Lounge’s website.

As we previously reported, the trial court granted summary judgment for the plaintiff, finding that the ADA applied to the defendant’s website.  In considering this issue, the California Court of Appeal noted that there is “essentially a three-way split” among federal courts as to whether the ADA, which prohibits discrimination in “any place of public accommodation,” only applies to physical places.

The Third Circuit has held that “public accommodation” does not “refer to non-physical access.” Ford v. Schering-Plough Corp. (3d Cir. 1998), 145 F.3d 601, 612. The First, Second, and Seventh Circuits have held that a “place of public accommodation” need not be a physical space.  Carparts Distri. Ctr. v. Automotive Wholesaler’s (1st Cir. 1994) 37 F.3d 12, 19-20; Doe v. Mutual of Omaha Ins. Co. (7th Cir. 1999) 179 F.3d 557, 559 (place of public accommodation encompasses both physical and electronic space and applies to websites); Pallozi v. Allstate Life Ins. Co. (2d Cir. 1999) 198 F.3d 28, 32 (ADA was “meant to guarantee … more than mere physical access.”)

The Ninth Circuit has taken an intermediate position and held that websites are covered by the ADA where there is a “nexus” between the website and a physical place of public accommodation. Robles v. Domino’s Pizza, LLC (9th Cir. 2019) 913 F.3d 898, 905-906. While the Thurston Court noted that, as a California court, it is not bound by Ninth Circuit precedent, it went ahead and applied the nexus reasoning. It held that “at a minimum, the ADA covers a website with a nexus to a physical place of public accommodation,” and that there was such a nexus between the defendant’s restaurant and its website, which included a menu and reservation feature. The Court therefore did not address and left open the question of whether Unruh Act claims in California courts apply to exclusively e-commerce websites.

For questions or more information, or to schedule a website accessibility webinar for your company, contact the authors listed.

Website Accessibility Guidelines Get Update; California Court Limits Penalties to One Visit

An update has been published to the Web Content Accessibility Guidelines (WCAG) 2.0, the standards that have been applied by many courts in the absence of website accessibility regulations by the Department of Justice.

The new version, named WCAG 2.1, was published on June 5 by the World Wide Web Consortium (W3C), an industry group of website accessibility experts.

WCAG 2.1 amends the prior standards, which were issued in 2008, by adding 17 additional criteria to address accessibility barriers.  The updates are mainly related to mobile devices and disabilities that affect vision and cognitive function.

For example, WCAG 2.0 did not expressly address mobile applications, although many of the same criteria for website accessibility was also applicable to mobile apps. WCAG 2.1 provides additional guidance concerning accessibility of mobile apps, including:

  • user interactions using touch,
  • handling more complex gestures, and
  • avoiding unintended activation of an interface.

For users with low vision, WCAG 2.1 also extends content requirements to graphics, and introduces new requirements for text and layout customization. For users with cognitive, language, and learning disabilities, the WCAG 2.1 updates include a requirement to provide information about the specific use of input controls, and additional requirements to support timeouts due to inactivity.

Although the Department of Justice has not issued regulations concerning website accessibility, and has removed the issue from rulemaking, many courts have applied WCAG 2.0 as the standard for website accessibility. All criteria included in WCAG 2.0 are included in WCAG 2.1.

California court holds phone, email are not alternatives to compliant website, limits statutory penalties to one visit

In other website accessibility news, a California court has granted summary judgment to a visually impaired plaintiff, ruling that “auxiliary aids” in the form of phone calls or email replies do not satisfy the ADA’s requirement of providing “full and equal enjoyment of … any place of public accommodation.”

In Thurston v. Midvale Corp., Los Angeles Superior Court Case No. BC663214, the defendants, who operate the Whisper Lounge restaurant and website, argued in part that the plaintiff could have called or emailed the restaurant to obtain information, instead of accessing the information on the website.

Judge Samantha Jessner held that email and telephone options do not provide “equal enjoyment of the website,” as the ADA requires, but instead impose a burden on the visually impaired to wait for a response via email or call during business hours rather than have immediate website access. Thus, the court held that email and telephone alternatives do not provide effective communication “in a timely manner” or protect the independence of the visually impaired.  The court ‘s ruling left open the question of whether a toll-free number staffed 24 hours a day would produce a different outcome.

The court rejected defendants’ arguments that their website is not “a place of public accommodation” under the ADA and that the case violated defendants’ Due Process rights because the court should wait until the Department of Justice issues regulations regarding website accessibility. In rejecting the defendants’ argument regarding the WCAG guidelines, the court found that the complaint merely referenced the guidelines and didn’t seek to hold defendants liable for violating the guidelines.

The court also rejected their argument that a redesign of the website rendered the case moot, holding that the restaurant did not establish that “subsequent events make it absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.”

In the only aspect of the ruling favorable to defendants, the court held that the plaintiff was entitled to only $4,000 in damages under the Unruh Act, which provides for a minimum of $4,000 in statutory damages for each incident of discrimination. The court held that plaintiff’s repeated visits to the same inaccessible website did not establish separate offenses for purposes of calculating damages.

For questions or additional information, contact the authors, or any member of our Retail team.

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