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.