Accessibility IS Accessibility. That’s what businesses with a physical presence in the Golden State might be expected to conclude about their website functionality after a recent ruling of the California State Court of Appeals.


Thurston v. Midvale Corporation is a 33-page decision that was published on September 3 of this year. In it, the Court upheld an earlier decision by the California Superior Court that the restaurant-owning company violated the state’s Unruh Civil Rights Act, (as well as Title III of the Americans with Disabilities Act), by operating a website for one of its restaurants that wasn’t operational with a screen reader for accessibility to the visually impaired.


The Court of Appeals ordered that Midvale Corporation put the website in compliance with Web Content Accessibility Guidelines (WCAG) 2.0 Level AA.


This decision is likely to concern business owners in California with websites that are not accessible to people with disabilities included but not limited vision impairment and blindness. Let’s take a closer look.


Brick and Mortar Nexus

The appeal ruling focused on the fact that the defendant business had a brick and mortar location in the state, and that the website had a direct connection, or nexus, to that place of public business. That made it subject to ADA Title III regulations, in the purview of the Court.

Citing a recent ruling by the Ninth Circuit Court of Appeals regarding the lack of online accessibility on the Domino’s Pizza website and mobile app, the California Court noted that the ADA affected websites “connected” to physical businesses, and that the goal of ADA as it was originally written was to keep up with changing technology such as digital marketing communication. In other words, while the Internet was not a major factor in 1990, when the ADA passed Congress, its reality fits within the intent of the federal law.


One argument the defendant made was that the website didn’t actually connect customers to the restaurant, but to a third party vendor for the purpose of making reservations. The court wryly noted that hiring someone else to take discriminatory action didn’t make it legal, and hinted that it would still hold businesses responsible for the non-accessibility of the websites of vendors in such circumstances.


The court also ruled that the availability of phone and email communications options for a visually impaired person to obtain restaurant information was inadequate since it relied on the hours of availability of the answering party. A website is available 24 hours a day, at the user’s convenience and discretion, while the phone and email responsiveness was more limited and subject to outside control.


(However, this ruling didn’t address whether a toll-free 24-hour customer service phone line would have been adequate, so that could perhaps be a future challenge.)


Due Process Challenge

Another argument that did not “fly” with the Court of Appeals was the defendant’s claim that due process was denied in that the state Supreme Court had equated WCAG 2.0 Level AA and ADA website compliance. While the Court of Appeals agreed that WCAG was only a state guideline, and that it held no legal standing at this time, the Court said that the trial court had based its ruling on the restaurant website’s clash with ADA standards, not with those of the state guidelines.


Major Website Accessibility Cases

Thurston v. Midvale Corporation is one of the substantive website accessibility cases to be decided in the state, with mixed results. In addition to this current case, plaintiffs have won in a case against a retailer in Davis v. BMI/BND Travelware, while defendants came out on top in cases challenging the websites of a credit union and a hotel. Plaintiffs in the credit union case are appealing the decision.


Ramifications of the Ruling

The ruling suggests that the owners of California restaurants and other brick and mortar retail businesses without website accessibility features can expect additional legal action on this front in state and federal courts.


Perhaps the only way that businesses won’t continue to face such ADA website lawsuits is if the U.S. Supreme Court hears the Domino’s case and overturns the Ninth District Court decision, or if Congress amends the ADA to protect websites.



ADA Title III lawsuits have increased in the last year. In fact, our latest research shows that from January through June of 2019, 12 percent more federal court lawsuits were filed. The data shows that 5,592 ADA Title III lawsuits during that period. The same six month period in 2018 only saw 4,965 lawsuits filed in federal courthouses in states across the US.


ADA Title III Compliance Lawsuits


The rate of lawsuits is expected to break records. At the current pace, more than 11,000 lawsuits could be filed by the end of 2019. Here is a closer look at the states with the most federal ADA Title III lawsuits so far this year:


California is the top state with 2,444 lawsuits

New York is No. 2 with 1,212 lawsuits

Florida is third with 1,074 lawsuits


Even though California has so many more federal lawsuits for ADA Title III compliance than other states, the state also has its own relative law known as the the Unruh Civil Rights Act. This act gives individuals $4,000 per incident of discrimination in a provision for statutory damages. The provision is an automatic payment. That means plaintiffs who prevail in federal court with their lawsuit do not have to show evidence of actual damages. If they do show evidence, they have the ability to request additional payment in federal court.


Also, when someone files their case in state court via the Unruh Civil Rights Act this data does not get included with federal data. The result is we do not have a full representation of the cases in California. If you are a business owner in California be doubly aware of ADA Title III compliance to protect yourself and your entity.


States Without Federal Lawsuits

In addition, other states have similar legislative acts. Therefore, you are limited on understanding the full scope of noncompliance. For instance, some states provide plaintiffs with disability access claims that include statutory damage recovery. The problem with this is there are very few states that offer this support. Title III only provides recovery for the cost and fees for attorneys and injunctive relief.


Several states have not had any lawsuits filed for 2019 to date including:

Idaho

Iowa

Montana

North Dakota

Oklahoma

South Dakota

Vermont


ADA website accessibility is a newer and more pressing issue, while inaccessible physical facilities continue to be a major problem in communities nationwide. For example, several hotels have not included the right information about ADA accessibility at their facilities. When guests make reservations online, they lack accurate and/or adequate information about whether the physical location will be accessible.


This is where lawsuits are coming from, and businesses are caught trying to maintain compliance, and keep out of the courtroom.

  • ADA Web Compliance Co.

Updated: Sep 9, 2019

The Ninth Circuit Court of Appeals made a ruling on January 15, 2019, on the Domino's vs. Robles accessibility lawsuit. The ruling was from the fifth federal appeal court around website accessibility. The plaintiffs, along with their lawyers, won out in the ruling. The court overturned the dismissal of the website accessibility lawsuit in question. The overturning was on the grounds of due process and primary jurisdiction.


Ninth District confirmed that website accessibility or mobile application has a tie to a physical place of public accommodation. When you cannot access the site or application, you cannot gain the goods and services. In this case, that is the physical pizza franchise Domino's. It is possible that, down the line, a determination that a toll-free phone line available 24/7 may qualify as access may be made. There was no conclusion if this would be an adequate way to meet the accessibility needs of ADA Title III.




The ruling by the Ninth Circuit states that ADA does apply to the Domino’s website and mobile application. The court, thus, made it clear that ADA is going to apply to services of a place of public accommodation, instead of services in place of public accommodation.


Per the ruling, Domino’s has been on notice from the Department of Justice’s opinion from 1996 that their website and mobile app have to have effective communication and web accessibility. The original Department of Justice documents do not mention mobile applications, but it is a natural extension.


The court also came to the conclusion, in the area of primary jurisdiction and doctrine, that not making any regulations about websites and mobile applications, and applying the doctrine, would delay a resolution for too long. The court, the Ninth District came to the decision, has the competence to come to a conclusion on their own.


The Ninth District’s decision is not one that is a surprise. The rejection of due process and primary jurisdiction arguments in the past. Many courts have come to this conclusion on prior cases as well.


What the Ninth District made clear, though, is that they are not coming to an opinion about the website or mobile application of Domino's and whether it complies with the ADA. The Ninth District has told the district court to move to the discovery phase. Once that is over, it is then that they can decide on the compliance of Domino’s with the ADA effective communication and full, as well as equal enjoyment mandates.


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