If recent filings in California courts are any indication, California businesses should familiarize themselves with the steps they may need to make their websites ADA compliant.
An emerging issue in the context of antidiscrimination law is the extent to which online offerings by covered businesses must comply with accommodation requirements imposed by statutes historically directed at the accessibility of physical locations. Title III of the Americans with Disabilities Act prohibits discrimination on the basis of disability in the full and equal enjoyment of the services of place of public accommodation. Discrimination includes the failure to take the steps necessary to ensure that individuals with disabilities are not excluded or denied services due to the absence of auxiliary aids and services. California’s Unruh Civil Rights Act similarly guarantees full and equal access to all business establishments in the state.
Because the adoption of these statutes predates the Internet age, the answers to these questions are emerging from legal battles in state and federal courts across the country. Many courts have found that the applicable antidiscrimination laws require businesses to design, construct, maintain, and operate websites and mobile applications to be fully accessible to blind and visually impaired users who access the internet using screen-reading software. Such software vocalizes visual information on websites. Websites must be properly designed and use sufficient text explanations of visual elements in order to be compatible with screen-readers.
Key Distinctions Between Title III of ADA and the Unruh Act
The ADA is limited in its applicability to places of public accommodation. Thus, accessibility requirements are limited to entities considered public accommodations within the statutory scheme of the ADA. While some Circuit Courts have found that online offerings are standalone public accommodations subject to accessibility requirements, the prevalent view in California and the Ninth Circuit is that the inaccessibility of an online offering is only relevant to the extent that it impedes access to the services of an ADA-covered public accommodation. In contrast, the Unruh Act only refers to business establishments generally and the statutory scheme does not expand on the definition of term or otherwise limit applicability.
Accordingly, the state statute may be more far-reaching than the ADA, reaching all businesses that operate in California, to the extent that application of the statute would not offend personal jurisdiction limitations on state courts. Private plaintiffs bringing suits under the ADA are generally limited to injunctive relief. Courts also have the discretion to award attorneys’ fees. California’s Unruh Act provides for damages awards up to a maximum amount of three times the amount of actual damages, with a minimum of $4,000. The statute also provides for attorney’s fees. Because the Act allows for such damages for “each and every offense,” there is a possibility that a court may find that each time a plaintiff attempted to access an inaccessible website may be considered a separate offense, entitling plaintiffs to aggregate the $4,000 penalty.
Plaintiffs often bring their accessibility claims under both the ADA and Unruh Act. Because the ADA is essentially a strict liability statute, plaintiffs can recover $4,000 in damages and attorney’s fees as provided by the Unruh Act by establishing an unintentional violation of the ADA. In contrast, the ADA only provides for an injunction and attorney’s fees. Furthermore, an Unruh Act claim without an underlying ADA violation requires establishing that the discrimination is intentional, which is difficult in the context of the accessibility features of a web design. However, the Unruh Act may also provide for greater application of the antidiscrimination statute beyond just the online offerings of physical establishments considered public accommodations.
Circuit Court Precedent on ADA Web Accessibility Requirements
It has long been Ninth Circuit precedent that Title III of the ADA applies only to the services of a place of public accommodation. Thus, when plaintiffs complain of inaccessibility to a particular good or service, courts require that the plaintiff show a connection between those goods or services and an actual physical place of public accommodation. This is referred to as “nexus requirements.”
In Robles v. Domino’s Pizza, LLC (9th Cir. 2019) 913 F.3d 898 the court further expanded on this requirement and the issue of the accessibility of online offerings by a place of public accommodation. The cases involved Domino’s Pizza’s website and mobile app, which allow customers to order food from a nearby location for delivery or in-store pickup. The website and application required a customer to select a nearby location, choose their preferences regarding their pizza order, navigate to the checkout page, and choose their preferred payment option. The suit was brought by a blind plaintiff who could not complete his custom pizza order using the website or mobile app. He alleged that the website and app did not include adequate written descriptions for every image and required users of screen-reading software to go through additional navigation and repetition when placing orders.
The Ninth Circuit found that the ADA’s accessibility requirements applied to Domino’s website and mobile app because the online offerings at issue “facilitate access to the goods and services of a place of public accommodation—Domino’s physical restaurants.” Furthermore, these offerings are “two of the primary (and heavily advertised) means of ordering Domino’s products to be picked up at or delivered from Domino’s restaurants.” The “nexus” between the online offerings and physical restaurants which are subject to the ADA’s accessibility requirements was “critical” to the Court’s analysis, but not contested by Domino’s. Thus, the application of the ADA’s accessibility requirement was proper because “[t]he alleged inaccessibility of Domino’s website and app impede[d] access to the goods and services of its physical pizza franchises—which are places of public accommodation.”
The Court declined to address whether ADA also imposes accessibility demands on covered businesses where the inaccessibility does not impede access to the goods and services of the physical location. The court also did not address the underlying issue of the Domino’s website and app’s accessibility, remanding to the district court to determine, after discovery, whether Domino’s provides the blind with effective communication and full and equal enjoyment of its products and services. Thus, while the Court found that a district court could order compliance with certain private industry standards for accessibility as an equitable remedy if it found that the website and app fail to satisfy the ADA, the question remains whether Domino’s provided adequate accommodation. This is important because in 2017, after the initial filing of the lawsuit, Domino’s introduced an accessibility banner in its website and app which directs visitors to a telephone hotline staffed by a live representative. Thus, the district court may find that this accommodation meets Domino’s ADA obligations and not order an equitable remedy which will force Domino’s to completely overhaul and redesign their website and app to increase accessibility.
Other Circuit Courts addressing the question of web accessibility under the ADA have reached different results. On the question of accessibility requirements on web-only businesses with no fixed physical location, the First, Second, and Seventh Circuits have found that web-only businesses can also face Title III liability based on inaccessibility. Thus, unlike the Ninth Circuit, which requires that the complained of online goods or services be connected with a physical location considered a public accommodation, these Circuits have found that websites offering goods or services are standalone public accommodations subject to ADA accessibility requirements.
The Third, Sixth, and Eleventh Circuits, along with the Ninth, have concluded that web-only businesses cannot face Title III liability, because the statute’s “public accommodation” language limits its application to physical locations. Thus, for the ADA to impose accessibility requirements, the goods and services at issue must be provided by a business with a brick and mortar location. Thus, defendants face Title III liability only if individuals with disabilities lack equal access to the goods or services of the physical place of public accommodation. The accessibility of a business’s online offerings cannot be considered in isolation and courts must consider the aggregate effect of all means of access to the goods and services at issue.
Interpretation of Web Accessibility Requirements in California State Courts
California state courts reviewing Unruh Act claims alleging violation of the ADA for failure to provide an accessible website have largely relied on the prevalent nexus theory and essentially mirror the analysis of the Ninth Circuit’s Robles case. Furthermore, state courts have granted and affirmed summary judgment in favor of plaintiffs and forgone important analysis regarding the adequacy of provided alternatives, seeming to require strict parity between the online offerings and their alternatives for visually impaired users.
In Thurston v. Midvale Corp. (2019) 39 Cal.App.5th 634, the plaintiff sued a restaurant for disability discrimination under the Unruh Act for violation of the ADA. Plaintiff alleged that the restaurant maintained a website that was incompatible with her screen reading software. Plaintiff alleged that she could not read the menu provided on the website or make reservations. Graphics on the website were inadequately labeled, so the screen reader software could not determine what information the graphics represented. The website did list a telephone number and email address for contacting the restaurant. While the website’s reservation system was accessible 24 hours per day every day, customers could make reservations by calling the restaurant only during business hours. The trial court granted summary judgment for the plaintiff, which was upheld by the appellate court. Because the court upheld the grant of summary judgment based on the “nexus” theory, the court did not address whether it agreed with a more expansive view that all websites providing goods and services can be considered standalone public accommodations subject to accessibility requirements. Under the nexus theory, the court found that the online offerings were sufficiently related to the goods and services at the physical location. When the online offerings allow a customer to speed up his experience at the physical location, there is sufficient nexus. Thus, it was not relevant that customers could not transact directly on the website by ordering a meal for delivery.
Furthermore, the appellate court rejected the claim that there was a triable issue as to whether the website provided appropriate auxiliary aids in the form of the website and email address. Public accommodations must furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities. These aids and services “must be provided in accessible formats, in a timely manner, and in such a way as to protect the privacy and independence of the individual with a disability.” The appellate court agreed with the trial court’s finding that the email and telephone options did not provide effective communication “in a timely manner” and did not “protect the independence of the visually impaired.” The telephone number did not provide the same privacy and independence that a fully accessible website offers, nor the same hours. Because the restaurant was not open 24 hours a day, the plaintiff could not obtain information from the restaurant 24 hours a day. The e-mail address on the website went to the restaurant manager, but the manager could not physically be available 24 hours a day. Furthermore, the use of a telephone number or e-mail would deprive the plaintiff of independence, because the use of either would require her to depend upon another person’s convenience to obtain information.
What’s striking about this case is that questions regarding web accessibility and accommodation requirement were settled at the summary judgment stage. Thus, while the Robles court advised caution in determining this issue, California courts are much more willing to make this judgment call. Currently, the outcome of the Robles case rests on whether the accessibility banner with a phone number is a sufficient accommodation for visually impaired users of screen-readers The district court may find that the accessibility banner with a hotline number is insufficient if it does not provide availability around the clock like the website and mobile app.
Another California Appellate Court reached a similar conclusion regarding web accessibility requirements, again establishing a low threshold for meeting the nexus requirement. In Martinez v. San Diego County Credit Union, the plaintiff asserted a single cause of action under the Unruh Act based on two alternate theories: (1) a credit union’s website violated the Americans with Disabilities Act and (2) those actions constitute intentional discrimination under the Unruh Act. The trial court had issued an order granting a motion for nonsuit, finding that the plaintiff had failed to state a cause of action under the ADA. (Note – the court also believed that the plaintiff had indicated that they intended to abandon the intentional discrimination claim).
The appellate court found that the trial court erred in dismissing the action at the pleading stage after reviewing the history and development of web accessibility claims under the ADA across different jurisdictions and adopting the nexus test for determining liability for web accessibility claims under the ADA and Unruh. The court determined that applying the nexus test to determine whether a business’s online offerings violated the ADA requires “focus[ing] on the connection between the website and the goods and services offered by the defendant.” This requirement is much more clearly satisfied when the website facilities the transaction with a place of public accommodation, such as in cases like Robles where customers can order the goods or services of the business on the website. However, the scope of the nexus requirement also extends to online offerings which expedite the customer’s ability to obtain the benefits of the business’s physical location (consider websites showing location, hours, a menu of items or services, etc.) The website need not necessarily be an extension of the business’s physical services in order to satisfy the nexus test. There is a sufficient nexus when a website “facilitate[s] the customer’s experience by providing information and making it easier (faster, more efficient, and/or more effective) for the customer to locate the physical facility and to understand and access the products and services offered at the defendant’s location”. Accordingly, the court found that a plaintiff who alleged that the manner in which a business’ website was formatted precluded him from determining what was on the website, looking for locations, checking out the services, and determining which location to visit, established a requisite nexus between the website and the credit union’s physical locations.
Within the existing precedent, it seems difficult to defend ADA accessibility suits when the online offerings at issue truly are inaccessible for users of screen-reading software. State and federal court precedents have a low standard for establishing a nexus between the online offering and places of public accommodation. Information explaining the goods and services provided at the physical location or in any way facilitating the transaction on-site is sufficient to establish nexus. Thus, websites providing anything as simple as menus, store locators, hours of operation, and explanation of services may be within the purview of the ADA. The kinds of online offerings that may avoid ADA liability are those whose meaning and reach is limited to the online context, such as discussion forums and streaming services. Furthermore, state court precedent suggests that any alternatives presented for visually impaired users of the website must be on equal footing with the website. If any information or feature is available around the clock on the website, it must also be available in the alternative method. The alternative must also take into account users’ interest in privacy and independence.
Amidst the rise of litigation on the topic of ADA web accessibility requirements and a lack of regulatory guidance, companies can protect themselves from liability by reviewing their online offerings to determine whether they comply with industry best practices. Because courts often order compliance with the Web Content Accessibility Guidelines (WCAG) when issuing injunctions for ADA web accessibility violations, companies whose online offerings comply with the guidelines will most likely avoid costly litigation and liability. Aside from court orders endorsing the WCAG, the California legislature is also moving towards adopting the guidelines as the de facto standard for accessibility. In early 2020, Assembly Member Chau introduced Assembly Bill 2123, which specified that an internet website is presumed to provide equally effective communication if it complies with specified standards established by the World Wide Web Consortium Accessibility Guidelines. The bill did not make it out of committee this session but is expected to be heard during the 2021 legislative year.
In the meantime, businesses can familiarize themselves with the WCAG, which are voluntary website-accessibility standards developed by the World Wide Web Consortium to provide detailed guidance on all aspects of how websites and apps should be designed to ensure accessibility. The aspect of web design often at issue is images on a website or application without alternative text, which renders them unreadable by screen-reading software. The WCAG advises that websites provide written descriptions of all images, audio content, and videos that communicate the same information as the visual, audio, or video content. Information should also be presented with meaningful order and sequence so that it is read properly by the screen-reading software. Businesses with existing websites or considering starting a new one should consider consulting with an accessibility expert to assess their online offerings and determine what changes, if any, need to be made.
 42 U.S.C. § 12182(a).
 42 U.S.C. § 12182(b)(2)(A)(iii).
 Cal Civil Code, § 51, subd. (b).
 42 U.S.C. §§ 12188(a)(2); 12205.
 Cal Civil Code, § 52, subd. (a).
 Note, however, that the trial court ruling affirmed in Thurston v. Midvale Corp. (2019) 39 Cal.App.5th 634 rejected this argument, finding that plaintiff was entitled to only $4,000 in damages under the Unruh Act, regardless of her repeated visits to the same inaccessible website. The appellate court ruling did not address this issue.
 Weyer v. Twentieth Century Fox Film Corp. (9th Cir. 2000) 198 F.3d 1104, 1114.
 Robles v. Domino’s Pizza, LLC (9th Cir. 2019) 913 F.3d 898, 905.
 Id. at p. 912.
 Carparts Distribution Ctr., Inc. v. Auto. Wholesaler’s Ass’n of New Eng. (1st Cir. 1994), 37 F.3d 12; Pallozzi v. Allstate Life Insurance Co. (2d Cir. 1999) 198 F.3d 28; Doe v. Mutual of Omaha Ins. Co. (7th Cir. 1999) 179 F.3d 557; Morgan v. Joint Admin. Bd., Ret. Plan (7th Cir. 2001) 268 F.3d 456.
 Ford v. Schering-Plough Corp. (3d Cir. 1998)145 F.3d 601; Peoples v. Discover Fin. Servs., Inc. (3d Cir. 2010) 387 F. App’x 179; Parker v. Metropolitan Life Ins. Co. (6th Cir. 1997) 121 F.3d 1006; Haynes v. Dunkin’ Donuts LLC (11th Cir. 2018); 2018 WL 3634720; Weyer v. Twentieth Century Fox Film Corp. (9th Cir. 2000) 198 F.3d 1104.
 Id. at p. 637.
 28 C.F.R. § 36.303(c)(1).
 Id at p. 650.
 See also Davis v. Bmi/Bnd Travelware 2016 Cal. Super. LEXIS 217 [granting plaintiff’s motion for summary judgment because plaintiff demonstrated a sufficient nexus exists between defendant’s retail store and its website which contained a store locator and enabled visitors to learn about the products available for purchase in the defendant’s retail stores].
 Martinez (2020) 50 Cal. App. 5th 1048
 Id at 1057.
 Id. at p. 1067.
 Id. at p. 1070.
 Id. at p. 1069.