ADA Website Accessibility: Courts Continue To Provide Clarity, At Cost to Businesses
In Thurston v. Midvale Corp.,[i]the California Court of Appeals for the Second Appellate District dealt another blow to businesses struggling with the onslaught of website-related Americans with Disabilities Act (ADA) suits, affirming a trial court’s finding that a restaurant’s inaccessible website violated the Unruh Act— specifically requiring the restaurant to bring its website into compliance with Web Content Accessibility Guidelines (WCAG) 2.0.
The court determined that the plaintiff’s inability to utilize the online menu and reservation system deprived her of equal access to the restaurant’s goods and services. In reaching that conclusion, the court surveyed the various approaches to the ADA’s analysis undertaken by the circuit courts of appeal, and adopted the now-majority viewpoint that websites are covered by the ADA where there is a nexus between the website and access to a physical place of public accommodation. The court rejected the more strict-constructionist interpretation that the ADA previously offered by the third circuit court of appeals, which has declined to extend the ADA beyond physical places of accommodation. In rejecting this narrower view, the court observed that “[t]he ADA is a remedial statute and as such should be construed broadly to implement its fundamental purpose of eliminating discrimination against individuals with disabilities[,]” further noting that “[t]he statute applies to the services of a place of public accommodation, not services in a place of public accommodation.”
Throughout its 33-page decision, the court thoroughly rejected the restaurant’s factual defenses as well as its due process and standing objections to the trial court’s liability finding and issuance of an injunction. With regard to ADA compliance, the court found that the restaurant failed to demonstrate that its alternative of offering of a telephone number and e-mail address through which the plaintiff could make reservations qualified as appropriate auxiliary aids and services under the ADA. The court determined that those alternative means of communication could only function during the restaurant’s operating hours and similarly relied upon another person’s convenience for the plaintiff to obtain information and, therefore, be effective. It was concluded that the plaintiff had offered undisputed evidence she was treated differently than sighted users of the website, and that the restaurant failed to offer alternative aids and services that protected the plaintiff’s independence.
Relying upon the ninth circuit’s decision in Robles v. Dominos, the court swiftly disposed of the restaurant’s due process claim premised upon the absence of any specific directives from the Department of Justice concerning website compliance with the ADA. As the ninth circuit did in Dominos,the court noted that businesses and the restaurant alike have been on notice since at least 1996 that online offerings must effectively communicate with disabled customers and facilitate “full and equal enjoyment” of its goods and services.
The court was likewise unpersuaded by the restaurant’s suggestion that the trial court’s injunction was improper because it allegedly equated WCAG 2.0 compliance with ADA compliance. As the court demonstrated, the failure of the restaurant’s website to comply with the well-known WCAG standards rendered the site inaccessible to the plaintiff while using a screen reader, and therefore the failure to follow the guidelines was the factual predicate for the trial court’s finding of an ADA violation based upon inaccessibility.
Thurston is the
latest in a growing trend of decisions rejecting defendants’ constitutional and
procedural objections to website-based ADA suits. With the California
Court of Appeals having removed any lingering question as to whether the ADA
applies to websites that have a connection to a physical location, coupled with
the affirmance of an injunction directing compliance with WCAG 2.0, prospective
plaintiffs are now armed with case law out of multiple states establishing that
WCAG 2.0 is essentially the standard of accessibility that is required in order
to avoid being sued for violations of the ADA. As a result, businesses
would be well-advised to evaluate their existing internet presence and invest
resources in ensuring that their websites meet WCAG standards for providing
equal access and enjoyment to their goods and services to visually impaired
[i] No. B291631, 2019 WL 4166620 [Cal. Ct. App. Sept. 3, 2019]