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An influx of lawsuits over the past decade have targeted website operators – especially those in the retail sector – for allegedly failing to make their sites accessible to visually impaired consumers, landing the likes of Ralph Lauren, millennial beauty brand Glossier, H&M, Rihanna’s Fenty, Gucci, Versace, Urban Outfitters, New Balance, Nike, and J. Crew, among thousands of others, on the receiving end of litigation in courts across the U.S. The number of filings has been so robust that between 2018 and the end of 2021, website and mobile app accessibility lawsuits made up roughly one fifth of all Title III of the Americans with Disabilities Act (“ADA”) lawsuits in federal courts, according to the American Bar Association, and at the same time, no shortage of cases have been filed at the state level based on similar laws, including California’s Unruh Civil Rights Act and New York State and City Human Rights Laws. 

The state of at least some of these lawsuits is slated to change significantly following a couple of recent developments, including a precedent setting decision from the California Court of Appeals this month. In a 35-page opinion in Martinez v. Cot’n Wash, Inc., the California Court of Appeals held that websites are not “public accommodations” under Title III of the ADA – or more specifically, the court stated that “[u]nder current law, we cannot read [the] phrase [‘place of public accommodation’] as including retail websites without any connection to a physical space,” and that creating and maintaining an inaccessible website cannot constitute intentional discrimination under the Unruh Act.

The court’s opinion follows from plaintiff Alejandro Martinez filing suit against Cot’n Wash, Inc., accusing the only-online cleaning products company of violating California’s Unruh Act by “intentionally maintaining a retail website that was inaccessible to the visually impaired because it was not fully compatible with screen reading software,” thereby, engaging in “intentional discrimination” and violating Title III of the ADA. (In order to establish a violation of the Unruh Act, a plaintiff must either prove that the defendant engaged in “intentional discrimination” or that it violated Title III.)

Martinez argued that the terms “facility” and “place of public accommodation” in Title III must be interpreted “broadly enough to include all retail websites, because to do otherwise would lead to an absurd result.” In particular, the court states that Martinez claimed that “it would be absurd for Title III to treat a sales transaction differently, depending on the venue through which it occurs.”

Unpersuaded, the California Court of Appeals held that the statutory language “does not include a category that encompasses such websites, and Congress has chosen not to amend the ADA to clarify whether and under what circumstances a website can constitute a ‘place of public accommodation’ – despite Congress recognizing over 20 years ago the lack of clarity on this point and the resulting federal circuit split that persists today.” In furtherance of its determination, the court also said that “[b]ecause brick and mortar stores conduct business differently than do retail websites, the type and extent of the burdens anti-discrimination measures impose on a business will necessarily differ depending on whether the business is operating through a physical storefront or a purely digital one.” 

While Martinez “will likely file a petition for review by the California Supreme Court,” Seyfarth Shaw LLP’s Minh N. Vu says that due to the fact that less than five percent of such petitions are granted, the appeals court’s decision – which falls in line with longstanding precedent of the U.S. Court of Appeals for the Ninth Circuit – will likely serve as binding precedent on all California trial courts. The significance of that for online only businesses “cannot be overstated,” she contends, as it means that “plaintiffs cannot successfully sue online only businesses for having inaccessible websites in California state or federal courts.” 

The impact is also expected to be significant given the sheer number of online-only, direct-to-consumer companies that currently exist in the market – from fast fashion giants like Shein to fashion platforms, such as Farfetch and Net-a-Porter. Although, it is worth noting that the number of online-only brands is waning, with many of the companies that made their names as digitally-native entities (think: Allbirds, Warby Parker, Bonobos, Everlane, Rent the Runway, Glossier, etc.) have moved into brick-and-mortar as a way to tap into things like increased spending and lower return rates that come with shopping in-store. And retail players that maintain both e-commerce and physical footprints will almost certainly be deemed to fall within the scope of Title III. 

The California appeals court’s decision comes on the heels of a decision from the U.S. Court of Appeals for the Second Circuit, which held in March that plaintiff Owen Harty “failed to allege a concrete injury in fact” in the lawsuit that he filed against West Point Realty – in which he accused the defendant of violating the ADA by operating a website that did not comply with the ADA – and therefore, “lacked standing to assert a claim under the ADA.”

According to the Second Circuit, Harty failed to allege “particularized” and “concrete” injury stemming from West Point Realty’s non-compliant website, as he “asserted no plans to visit West Point or the surrounding area,” and did “not allege anywhere in his complaint that he was using the website to arrange for future travel.” (On the contrary, the court stated that Harty “acknowledge[d] that his review of West Point Realty’s website was done in his capacity as a ‘tester’ of ADA compliance, not as a prospective traveler seeking a wheelchair-accessible hotel in West Point.”)

Ultimately, the court’s decision in Martinez adds to an overarching split among courts across the U.S. as to whether websites are public accommodations under Title III of the ADA. “There are currently three schools of thought as to whether a website constitutes a place of public accommodation for purposes of Title III,” Brownstein attorneys stated in a note in the issue, (1) a website is always a place of public accommodation; (2) a website is never a place of public accommodation; and (3) a website can be a place of public accommodation if it has a sufficient nexus to a physical location.” With such a split at play, companies are eager for guidance on the applicability of Title III to websites, as without a definitive ruling from the Supreme Court (which, in 2019, declined to review the Ninth Circuit Court of Appeals ruling in Domino’s Pizza, LLC v. Robles that held that Title III applies to websites that have a nexus to their brick-and-mortar locations) or guidance from the DOJ or Congress, website accessibility suits continue to pose a challenge.