The California Court of Appeals recently affirmed that a trial court was correct in sustaining a demurrer to a complaint alleging a violation of the Unruh Civil Rights Act based on maintaining a retail website that was inaccessible to the visually impaired by reason of a lack of compatibility with screen reading software. As to intentional discrimination, the California Supreme Court has held that the discriminatory effect of a facially neutral policy or action is not alone a basis for inferring intentional discrimination under the Unruh Civil Rights Act.
In addition, because a standalone website was not a place of public accommodation under 42 U.S.C. §§ 12181(7), 12182, the complaint failed to state a claim under the Unruh Act based on an alleged violation of the Americans with Disabilities Act which didn’t require proof of intentional discrimination.
In Martinez v. Cot'n Wash, Inc., 81 Cal. App. 5th 1026 (Cal. App. August 1, 2022), the plaintiff, as successor in interest to his brother, sought reversal of a judgment of dismissal following the successful demurrer of Cot'n Wash, Inc. (CW), to a complaint against the business alleging a single violation of the Unruh Civil Rights Act. The complaint alleged that CW violated the Unruh Civil Rights Act by intentionally maintaining a retail website that was inaccessible to the visually impaired because it was not fully compatible with screen reading software. On appeal, Martinez argued that the trial court erred in concluding the alleged inaccessibility of CW's website didn’t violate the Americans with Disabilities Act and that his complaint didn’t allege sufficient facts to establish CW's discriminatory intent, which the Unruh Civil Rights Act requires in the absence of an ADA violation.
In June 2021, the trial court sustained CW's demurrer to the complaint without leave to amend, and thereafter entered a judgment of dismissal. The plaintiff appealed.
The Court of Appeals’ Opinion
Presiding Judge Rothschild wrote that the Unruh Civil Rights Act provides: “All persons within the jurisdiction of this state … no matter what their … disability … are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.” A plaintiff can recover under the Unruh Civil Rights Act on two alternate theories:
- A violation of the ADA (Civ. Code, § 51(f)); or
- Denial of access to a business establishment based on intentional discrimination.
On appeal, the plaintiff contended his complaint alleged facts sufficient to establish an Unruh Civil Rights Act claim under both theories.
No Intentional Discrimination
However, Judge Rothschild and the Court of Appeals found that the complaint did not allege facts establishing intentional discrimination. The judge wrote that unless an Unruh Civil Rights Act claim is based on an ADA violation, the act requires a claimant to prove intentional discrimination. As a result, a claimant may not rely on the effects of a facially neutral policy on a particular group to infer solely from such effects a discriminatory intent. Thus, absent an ADA violation, the Unruh Civil Rights Act requires allegations supporting “‘willful, affirmative misconduct’” with the specific intent “to accomplish discrimination on the basis of [a protected trait].” And while evidence of disparate impact may be probative of intentional discrimination in some cases under the Unruh Civil Rights Act, it alone can’t establish such intent.
The plaintiff argued that the complaint alleged such “willful, affirmative misconduct” sufficient to establish intentional discrimination and thus states a cause of action under the Unruh Civil Rights Act on that independent basis. Specifically, he argued the complaint allegations establish CW failed to take adequate actions to correct accessibility barriers in its website even after being notified of them in correspondence from his counsel. But if he can’t establish CW's intent to discriminate by showing only that its website doesn’t allow visually impaired individuals the same access available to those who are not visually impaired (i.e., a disparate effect of a neutral structure), it follows that CW's failure to address this disparate effect likewise cannot establish CW's intent to discriminate, the judge explained.
No ADA Violation
The Court of Appeals found that the complaint didn’t allege facts establishing a violation of the ADA, because CW's website wasn’t a “place of public accommodation.” To establish a Title III violation, a plaintiff must show: (1) a covered disability; (2) that the defendant is a private entity that owns, leases, or operates a place of public accommodation; and (3) the plaintiff was denied public accommodations by the defendant because of the disability.
Judge Rothschild acknowledged that courts have reached different conclusions on the issue of whether a website is a public accommodation. The federal courts have expressed two main views. The first is that websites are ‘public accommodations’ within the meaning of the ADA, which has been adopted by courts in the First, Second, and Seventh Circuits. The second is that websites aren’t “public accommodations” under the ADA, but a denial of equal access to a website can support an ADA claim if the denial has prevented or impeded a disabled plaintiff from equal access to, or enjoyment of, the goods and services offered at the defendant's physical facilities. This view has been adopted by courts in the Third, Sixth, Ninth, and Eleventh Circuits.
The judge noted that the limited California case law on this topic offered little guidance in navigating this federal circuit split. At least two California Courts of Appeal have applied the nexus analytical framework in assessing whether a website is a place of public accommodation. Because both these cases determined the requisite nexus existed, however, neither provided an occasion for the court to consider under what circumstances, if any, a standalone website can meet this definition.
Judge Rothschild and the Court of Appeals disagreed with the plaintiff that the plain language of the statute was alone sufficient to decide the issue—let alone sufficient to decide the issue in his favor. Maxims of statutory construction support adopting a narrow interpretation of “place of public accommodation,” he wrote. Regulations define “place of public accommodation” as “a facility operated by a private entity whose operations affect commerce and fall within at least one of” the 12 categories specifically listed in 42 U.S.C. § 12181. Regulations further define “facility” under Title III as “all or any portion of buildings, structures, sites, complexes, equipment, rolling stock or other conveyances, roads, walks, passageways, parking lots, or other real or personal property, including the site where the building, property, structure, or equipment is located.” The only way a website might constitute a “facility” is if it qualifies as one of these items in the definition of “facility.”
Treating retail websites like other retailers in 2022 does make sense, but the judge said it doesn’t follow that treating them differently from brick and mortar retailers can’t also make sense. Because brick and mortar stores conduct business differently than do retail websites, the type and extent of the burdens antidiscrimination measures impose on a business will necessarily differ depending on whether the business is operating through a physical storefront or a purely digital one. The judge went on to explain:
Given the different burden-benefit calculus that would apply in determining how to impose accessibility requirements on these two different types of retailers, it would not be an absurd result that Title III addresses only physical retailers, and that the question of how to properly balance the benefits and burdens of imposing similar requirements on purely digital retailers remains for Congress to separately consider. We thus conclude that it would not be an absurd result to interpret Title III as treating transactions differently depending on whether they are purely digital or have a physical component, and that avoiding an absurd result therefore cannot drive our interpretation of the language at issue.
Thus, even after examining the language of the statute and considering maxims of statutory interpretation and legislative history predating passage of the law, the Court didn’t have a clear answer as to whether a purely digital retail website can constitute a “place of public accommodation” in the context of Title III.
Judge Rothschild noted that Congress and the DOJ have long been aware of the confusion in the courts regarding whether and when a website can be considered a “place of public accommodation,” but have chosen not to clarify the issue through amendments to the statute or additional rulemaking. The federal circuit split began in the 1990's, and resolving it—be it through judicial or legislative means—has been the topic of legal scholarship ever since then.
It appears that, no later than 2010, Congress and the DOJ:
- both recognized the need to clarify whether and under what circumstances a website might constitute a “place of public accommodation,” and
- agreed that such clarification should take a broad and inclusive approach.
The only conclusion the Court of Appeals could draw from their failure in the 12 years that followed to provide any such clarification through regulation or statute is that neither officially endorses this approach. Judge Rothschild said that Congress's failure to provide clarification in the face of known confusion—and, to a lesser extent, the DOJ's similar failure—is not a reason for the Court to step in and provide that clarification. “To the contrary, it is a reason for us not to do so. This is particularly true, given that providing clarification in the manner Martinez requests could have sweeping effects far beyond this case, none of which has been the subject of legislative fact finding,” the judge wrote.
The Court of Appeals found that because CW's website didn’t constitute a “Place of Public Accommodation,” the complaint didn’t allege a Title III violation. As such, the complaint also couldn’t state a claim under the Unruh Civil Rights Act based on CW's denying the plaintiff access to CW's website in a manner that violates Title III. Given that the complaint also fails to allege intentional discrimination, it fails to state a viable legal claim under the Unruh Civil Rights Act, and the trial court correctly sustained CW's demurrer.
The judgment dismissing the complaint was affirmed. Martinez v. Cot'n Wash, Inc., 81 Cal. App. 5th 1026 (Cal. App. August 1, 2022).