Calif. ADA Ruling Applies Website Nexus Standard Broadly

Website accessibility litigation generally revolves around two threshold legal questions. Does the Americans with Disabilities Act ever apply to websites? And if so, which websites does it apply to?

At least seven federal circuit courts have answered these questions — with mixed results. But until recently, California courts had provided little guidance. A few trial courts had ruled for ADA plaintiffs, and a few had ruled for businesses defending website accessibility claims.

On Sept. 3, the California Court of Appeal's Second Appellate District issued its opinion in Thurston v. Midvale Corporation.[1] While this decision leaves some questions unanswered, it makes clear that commercial websites with a nexus to a physical location are subject to the ADA.

In Thurston, the plaintiff brought a claim under California’s Unruh Civil Rights Act, that claim being predicated on an alleged ADA violation: that the defendant’s website was not accessible to her because it was incompatible with the screen reader technology that she and other visually impaired persons use to navigate the internet. Specifically, she alleged that she was unable to view the menu or make an online reservation. 

The website at issue related to a restaurant with a physical location. While the defendant provided a telephone number and email address for inquiries, responses were only provided during business hours. The trial court granted summary judgment for the plaintiff, finding that the defendant’s website failed to comply with the ADA, and ordering that the website be modified to comply with the Web Content Accessibility Guidelines 2.0 — a set of privately developed standards that are commonly used but otherwise not binding or authoritative.

On appeal, the court began with the threshold question of whether and to what extent the ADA applies to websites. As the court correctly noted, federal circuit courts have answered this question in three conflicting ways:

1. The U.S. Court of Appeals for the Third Circuit has held that the ADA does not apply to websites and is limited in application to physical spaces
2. The U.S. Courts of Appeals for the Ninth, Sixth and Eleventh Circuits have held that the ADA applies to websites that have a connection or nexus to a physical place of public accommodation; and
3. The U.S. Courts of Appeals for the First, Second and Seventh Circuits have held that a website is a place of public accommodation under the ADA. 

Notably, under the nexus approach, some courts have reasoned that access to the underlying physical location is curtailed because the website is not accessible. For this reason, many ADA plaintiffs have often alleged that a store-finder website feature was incompatible with their screen reader.

The court expressly rejected the Third Circuit’s conclusion that the ADA does not apply to websites: "We agree with the numerous courts which have found the definition of public accommodation clear and unambiguous, and encompassing more than a physical place."

A contrary finding would have effectively ended ADA website litigation in California state courts. Instead, and echoing the U.S. Court of Appeals for the Ninth Circuit’s opinion in Robles v. Domino’s Pizza LLC,[2] the court held that: 

[Including] websites connected to a physical place of public accommodation is not only consistent with the plain language of Title III, but it is also consistent with Congress’s mandate that the ADA keep pace with changing technology to effectuate the intent of the statute. 

Because the website at issue in Thurston was found to have a nexus to a physical restaurant, the holding above was sufficient to secure a victory for the plaintiff. Yet the plaintiff asked the court to go a step further, and declare that commercial websites must comply with the ADA regardless of whether there is a nexus to a physical location.

Had the court rejected this position, purely web-based businesses would have gained a powerful tool for avoiding accessibility litigation in California state courts. E-commerce businesses with consumer-facing physical locations only outside of California also would have benefited from such a ruling.

The court ultimately left what it referred to as a wholly hypothetical question unanswered. Notably, however, the court’s repeated reminder that the ADA must be "construed liberally to carry out its purpose," and its observation that the internet is now essential to everyday life and is a key part of the consumer experience, are not terribly encouraging for businesses.

The court also adopted a broad interpretation of the nexus requirement. The defendant argued that there was not a sufficient nexus between its website and its restaurant, because the only service it provided (i.e., food) was only served in the physical location.

In rejecting this argument, the court found that a consumer could speed up their physical experience at the restaurant by viewing the menu beforehand. It further stated that a sufficient nexus may be found where "the website connects customers to the services of the [business]." The court did little to distinguish between any unique characteristics of a physical location versus a website, arguably setting the stage for a later ruling adopting a more expansive application of the ADA to websites.

While not central to its core holding, the court also addressed a novel due process challenge raised by the defendant. Specifically, the defendant argued that that the trial court erred by equating ADA compliance with WCAG 2.0 compliance.

The court acknowledged that this argument certainly had a kernel of truth, as there are no defined and binding standards for website accessibility. But it disagreed with the framing of the complaint, finding instead that the trial court’s order — that the defendant’s website must be modified to comply with WCAG 2.0 — was purely remedial, and that the underlying violation was of the ADA rather than WCAG 2.0.

As a result, it's expected that WCAG 2.0 will continue to function as the generally accepted standard for ADA website accessibility, in the context of both settlement and injunctive relief in California state courts.

The court’s decision in Thurston is not the grand slam that the ADA plaintiffs bar had hoped for. Where a website is tied to a physical location (e.g., a restaurant or store in California), California ADA plaintiffs will have an easier time litigating in California state court.

But such plaintiffs could already pursue those claims in California federal courts — using a direct ADA claim as the hook for jurisdiction while seeking statutory damages on an Unruh Act claim.[3] The decision is nonetheless unfortunate news for businesses with physical locations in California, all of which would be wise to at least investigate the feasibility of WCAG 2.0 compliance.

Further developments in this area may be on the horizon, as the California Court of Appeal's Fourth Appellate District will likely decide a similar case next year in Martinez v. San Diego County Credit Union.[4]

Originally published on Law360 (Subscription required)

[1] Case No. B291631; https://www.courts.ca.gov/opinions/documents/B291631.PDF.

[2] 913 F.3d 898, 905–906 (9th Cir. 2019).

[3] https://www.law360.com/articles/1137377/9th-circ-has-made-ada-website-suits-more-attractive.

[4] Case No. D075360.