With the state Supreme Court declining review of an ADA (Americans with Disabilities Act) case involving website accessibility, an appellate decision on application of California’s Unruh Act will function as precedent, although it doesn’t guard against repeat ADA claims for businesses with physical locations.
The state Supreme Court on Nov. 9 declined to review the case, Martinez v. Cot’n Wash, Inc., meaning the appellate decision, issued in August, stands as precedent.
In short, it generally means that the California Supreme Court did not see any reason to disturb the ruling of the Court of Appeal, so that decision will stand and may have application to trial court proceedings unless or until some higher court reaches some contrary conclusion, Victor Gómez, executive director of California Citizens Against Lawsuit Abuse (CALA) told the Northern California Record by email.
“Because lawsuits relating to website accessibility for people with visual limitations are one of the fastest growing claims in California, CALA welcomes any court clarification of the limits of laws many consider to be overbroad and overused, like the sole claim in this case under California’s Unruh Act (Cal. Civil Code § 52(a)),” Gómez said.
“Tens of thousands of lawsuits have been filed in just the past few years seeking $4,000 or more in damages under the Unruh Act, so if the California Supreme Court had not confirmed that this decision would be final, there is no telling how many thousands of similar claims might continue to be filed against small businesses in these very challenging economic times.”
But Gómez noted it is important to keep the relatively limited significance of this decision in perspective.
“First, this was only the California Supreme Court denying review — this is significant because California businesses which operate websites can be sued in almost every other state and country, and this decision would have little impact on that,” Gómez said.
“Second, the operative complaint in this case only sought relief under California’s Unruh Act, and it is fairly rare for lawsuits to seek relief under only that law (i.e., most seek relief under the Americans with Disabilities Act of 1990 — the ADA— as a primary claim). Third, a vast number of ADA website accessibility cases are filed in federal court, and some of the costliest aspects of defending these claims are the legal and expert fees to address the plaintiffs’ claims that changes are needed to the website(s) in question, and this decision would have little impact on that in many cases.
“Thus, while the decision provides welcome clarification and relief, almost anyone who operates a website dealing with business issues cannot afford to ignore the significant risk these claims will continue to pose, and should consider making quick changes to prevent them.”
Gómez also said the ruling may have consequences for "serial" filers of ADA website litigation.
“It may make them more likely to target websites for companies which have some public physical presence somewhere (i.e., the appellate court concluded that because the defendant company did not have a public physical presence where products were sold, but offered products online exclusively, it was not a ‘place of public accommodation’)," he said.
"It may also make them more likely to attempt to create evidence to show that a business is on notice of the need to make website changes to be more accessible to people with disabilities,” Gómez said. “So businesses should take steps to plan for such potential claims and practices.”
While the appellate ruling is precedent now, how long it remains so can’t yet be known.
“While this case might potentially be cited as precedent in the very limited situation where a plaintiff sought relief under only California’s Unruh Act against an online-only business with no public retail location, it should be obvious that such limited claims are relatively rare, and will probably become even more scarce as a result of this decision,” Gómez said.
Absent changes in the state Legislature, there may be action at the federal level.
“Congress needs to do its job— websites, and website lawsuits, have been around for decades and are not going away,” Gómez said. “When the ADA was passed in 1990, there was considerable public debate and businesses had time to make changes to meet the requirements without penalty (i.e., an accessible parking space needed to be 18-feet-long, a grab bar needed to be a specified length, etc.).
“While it is true that websites as we know them didn’t exist when the ADA passed, they did when Congress enacted the ADA Amendments Act in 2008, but it did not include provisions clearly confirming whether website accessibility was required or not.
"Our system of government normally requires that our elected legislators debate and agree on a requirement before businesses will be subject to a penalty for not complying with it— but the development of ADA website lawsuits has been completely counter to that, in that our legislators have never voted to expressly make websites subject to the ADA; rather, the Department of Justice and some courts have concluded that websites fall under the communication requirements of the ADA, and provisions which require businesses to keep up with changes in technology are often cited to support these claims.
"Similarly, there has never been any standard approved by the legislature which a website must meet to be compliant— even the Website Content Accessibility Guidelines (WCAG) often cited by courts are developed by a non-governmental organization and continue to evolve (making compliance an evasive, moving target which is especially challenging for small businesses to meet).
“In short, we pay our legislators to prevent crises— not create them. It is imperative that Congress act to confirm a clear standard a website must meet to avoid these claims, and a reasonable time period by which to meet them, before liability can accrue.”