Seyfarth synopsis: California Court of Appeal affirms ruling that inaccessible restaurant website violated the Unruh Act and orders that restaurant website comply with WCAG 2.0 Level AA.
Before September 3, 2019, there were four substantive California state trial court decisions in website accessibility cases, and the verdict score was tied at 2-2. Plaintiffs obtained summary judgment in two website accessibility cases concerning the websites of a retailer (Davis v. BMI/BND Travelware) and a restaurant ( Thurston v. Midvale Corporation), while defendants secured summary judgment in a website accessibility case concerning a credit union website (the case has been appealed) and a defense jury verdict in a case concerning an inaccessible hotel website. Defendant Midvale Corporation pursued an appeal, which has resulted in very favorable precedent for website accessibility plaintiffs and their lawyers.
In a 33-page published decision, the California Court of Appeal affirmed the California Superior Court's summary judgment ruling that Midvale violated the California Unruh Civil Rights Act by having a restaurant website that could not be used by a blind person with a screen reader. The Court of Appeal also affirmed the trial court's injunction mandating that Midvale make the restaurant website comply with the Web Content Accessibility Guidelines (WCAG) 2.0 Level AA. Because the plaintiff's Unruh Act claim was based on a violation of Title III of the ADA, the court's analysis focused on whether Midvale violated the ADA by having an inaccessible website.
Here are some highlights from the decision:
Websites with a physical nexus are subject Title III. The court held that that Title III of the ADA applies to a restaurant website because the website has a nexus with a physical place. Citing to the federal Ninth Circuit Court of Appeals' decision in Domino's, the Court held 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 the changing technology to effectuate the intent of the statute." The Court also provided a detailed analysis of when a website has a sufficient nexus to a physical place of public accommodation, noting that a sufficient nexus existed in this action because "the website connects customers to the services of the restaurant." The Court declined to consider the plaintiff's "wholly hypothetical question" of whether Title III of the ADA governs a website unconnected to a physical place of public accommodation offering only purely internet-based services or products. This ruling is good news (for the moment) for businesses that do not have a physical location where customers go.
Third Party Content. In response to Midvale's argument that its website did not really connect customers to its location because customers are directed to a third party reservation service website to make a reservation, the Court of Appeal said "appellant offers no legal support for its theory that it cannot be liable for ADA discrimination if hires someone else to do the discrimination." This comment and the related analysis suggest that the court would be inclined to hold businesses accountable for the inaccessibility of websites of third parties with whom they contract to provide services to customers.
Alternative Means of Effective Communication. The court held that there was no triable issue of fact about whether the restaurant's provision of a telephone number and email address on its website was a reasonable alternative means of providing effective communication because the restaurant's telephone line and email address were available only during the restaurant's hours of operation. Because a sighted individual could obtain information about the restaurant 24 hours a day by visiting the website, the Court reasoned that the telephone number and the email did not provide effective communication in a "timely manner" since "the use of either [the telephone number or email] required [the plaintiff] to depend upon another person's convenience to obtain information." The court did not address, however, whether a toll-free number that is staffed 24 hours a day would have yielded a different outcome. This leaves open the possibility that a different outcome may be achieved with a different set of facts.
Due Process. The court rejected Midvale's argument that the trial court violated its due process rights by improperly equating ADA compliance with WCAG 2.0 AA compliance. While agreeing that WCAG 2.0 AA is not yet a legal standard, the court determined that the trial court "clearly rejected liability based on non-compliance with the guidelines and premised liability on the website's inaccessibility." The court also rejected Midvale's argument that the trial court's injunction implies that Midvale should have known WCAG 2.0 AA compliance was legally required under the ADA. The court found that "the more obvious implication [of the trial court's injunction] is that the trial court determined appellant could not or would not redesign its website to comply with ADA standards without specific guidance, and so it selected what it believed to be a widely used technical standard to provide the needed guidance."
WCAG 2.0 AA Injunction Not Overbroad or Uncertain. The court rejected Midvale's argument that the trial court's injunction to make the restaurant website comply with WCAG 2.0 AA is overbroad or uncertain because experts can differ on whether a website conforms to these guidelines. It reasoned that experts can weigh in on Midvale's compliance with the injunction and that this should be not be a bar to an injunction because trial courts routinely assess expert testimony.
Standing. The court held that Midvale forfeited its claim that the plaintiff lacked standing to obtain an injunction because it failed to raise this argument in opposing plaintiff's motion for summary judgment. However, the court pontificated that the plaintiff did have standing to obtain an injunction under the Unruh Act because she testified that she visited the website multiple times, both before and after the lawsuit was filed, and that she encountered barriers each time. Additionally, the court noted that the plaintiff testified to having at least some general interest in the restaurant (it was on a list of places she was interested in visiting), and claimed that she was deterred from visiting the restaurant's website as a result of the barriers she encountered. It is possible, however, that the court's finding on the standing issue could have been different, or at least more robustly analyzed, if Midvale had raised these arguments earlier in opposition to the plaintiff's motion for summary judgment.
This decision and the Ninth Circuit's decision in Domino's are both highly favorable to plaintiffs seeking to bring a lawsuit against a business with a brick and mortar presence in California. Thus, we predict a continued increase in the number of website accessibility lawsuits filed in California state and federal courts unless the U.S. Supreme Court agrees to hear the Domino's case and reverses the Ninth Circuit, or Congress takes action to amend the ADA.
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