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California Appellate Court Holds in Favor of a Digital-Only Retailer Under Both the ADA and Unruh Act


Over the past several years, plaintiffs have filed several lawsuits around the country, alleging that retail websites that were not accessible to blind and visually impaired individuals constituted a violation of the Americans with Disabilities Act.  This was perhaps most prevalent in California, which has its own civil rights statute, the Unruh Act, that provides a right of action for both violations of the ADA and for other alleged denials of access to disabled individuals on the basis of intentional discrimination.

Retailers often objected to the allegations under these suits, arguing that a website is not a place of public accommodation and that maintaining a website cannot possibly evince intentional discrimination.  On August 1, 2022, the California Court of Appeals opinion in Martinez v. Cot’n Wash, Inc. agreed on both fronts.  First, it held that operation of a website cannot be a basis for “inferring intentional discrimination” under the Unruh Act.  Second, it agreed with a plurality of federal Circuit Courts that a retail website without any connection to a physical space does not constitute a place of public accommodation under the ADA.

Beginning with the Unruh Act, one of the ways to establish liability under the Unruh Act is by alleging “willful, affirmative misconduct with the specific intent to accomplish discrimination on the basis of a protected trait.”  In California, disparate impact of a neutral structure is not enough to establish an intent to discriminate.  To get around this bar, the Plaintiffs in Martinez attempted to establish intent by alleging that after becoming aware that the website was impacting blind and visually impaired individuals, the retailer failed to address the continuing effect, which shows that it had an intent to discriminate.  But the Court rejected this argument.  Instead, it held that the failure to address a known discriminatory effect is not alone sufficient to establish intentional discrimination.  As such, the Court held that the complaint failed to state a claim under the Unruh Act on that ground.

Next, the Court also examined the website under the ADA.  No individual may be denied access to any place of “public accommodation” under the ADA as a result of their disability.  In Martinez—and in other website accessibility cases—plaintiffs have argued that the website was such a public accommodation.  Plaintiff supported this argument in Martinez by pointing to both the goals of Title III of the ADA and the legislative intent behind the statute: improving accessibility.  Indeed, the plaintiff argued that a broad interpretation of public accommodation would benefit the goals of the ADA, claiming that “it would be absurd” to treat a sale through a digital-only retailer differently than a sale at a brick and mortar retailer.  The Court rejected this argument, however, noting that websites are not contemplated within the text of the ADA because there is no nexus to a physical location and that neither Congress nor the Department of Justice has yet issued guidance to necessitate such a finding.  Therefore, the Court held that a digital-only retailer cannot be a “place of public accommodation” under the ADA.

That is not to say that no website can be considered a place of public accommodation, however.  The Court’s holding was carefully limited to only standalone websites that do not have any connection to a physical facility.  This mirrors the approach taken by courts in the Third, Sixth, Ninth, and Eleventh Circuits, which all held that denial of access to a website can support an ADA claim if the denial prevents a blind or visually impaired plaintiff from enjoying the goods or services at the brick and mortar location.  As such, if a website is for a business that maintains a physical location, an inaccessible website may ultimately leave the business susceptible to a claim under the ADA (and by extension, the Unruh Act).

Still, the Martinez Court’s expansive holdings on both the Unruh Act’s and ADA’s applicability to websites should shed a light on the risks faced digital-only retailers and brick and mortar retailers alike.

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