Reviewing the Americans With Disabilities Act’s Application to Websites–Martinez v. SDCCU

Following the Ninth Circuit’s Robles v. Domino’s opinion, we’ve entered a period of relative clarity about when websites constitute “places of public accommodation” for purposes of the Americans With Disabilities Act (ADA). A recent court opinion, over a financial institution’s website that allegedly doesn’t work with screen readers used by blind customers, helpfully summarizes where we are at. The court’s bottom line:

Although the courts have not yet articulated a single clear standard on this issue, most of the federal circuits and one California Court of Appeal have held a disabled plaintiff can state a viable ADA claim for alleged unequal access to a private entity’s website if there is a sufficient nexus between the claimed barriers and the plaintiff’s ability to use or enjoy the goods and services offered at the defendant’s physical facilities.

The opinion explains how it reaches that result. As has been well-documented, the ADA does not expressly reference websites in its text:

A website is not identified in any of the statutory categories. This is not surprising as there were no commercial websites when the ADA was enacted in 1990. But in the 30 years since, websites have become central to American life. They are widely used by both consumers and businesses to communicate information and conduct transactions, and are now essential tools in conducting daily affairs

In a footnote, the court adds “During the current pandemic, the Internet and websites have become even more critical.” Indeed, during the shutdown, many businesses, government institutions, and educational facilities closed their physical locations and moved everything online.

The court explains the debates over statutory interpretation:

the courts have reached different conclusions on the issue whether a website is a public accommodation. The federal courts have expressed two main views. The different views stem primarily from the extent to which the court adheres to the express statutory language or whether it finds legislative history and intent to be paramount considerations.

One view (the minority view) is that websites are “public accommodations” within the meaning of the ADA. This approach has been adopted by courts in the First, Second, and Seventh Circuits….These courts have also emphasized the critical nature of websites for transacting business in one’s daily life, and that Congress made clear its intention that the ADA adapt to changes in technology….

The second view (the majority view) is that websites are not “public accommodations” under the ADA, but a denial of equal access to a website can support an ADA claim if the denial has prevented or impeded a disabled plaintiff from equal access to, or enjoyment of, the goods and services offered at the defendant’s physical facilities. This view has been adopted by courts in the Third, Sixth, Ninth, and Eleventh Circuits….The courts adopting this narrower statutory definition of a “public accommodation” have relied on Congress’s explicit listing of the type of places considered to be “public accommodations,” and have emphasized that essentially all of these categories describe a physical location….these courts also recognize that a website can be important to providing access to a defendant’s public accommodation (physical premises) and to a disabled person’s ability to use and enjoy services provided at those places, and thus to the extent barriers on the website impinges on the plaintiff’s ability to access such benefits at a physical premises, the claim can be actionable under a nexus theory

The court distinguishes the 2003 Noah v. AOL case because it didn’t address whether chatrooms had a nexus to a physical facility.

The physical location-to-website “nexus” requirement isn’t new or even recent (I trace it back to this 2007 decision). However, it remains murky and unpredictable:

The courts have not been consistent in defining the scope of the nexus requirement. But most courts have interpreted the requirement broadly to conclude that a plaintiff has made the requisite showing if the facts show the website “connect[s] customers to the goods and services of [the defendant’s] physical” place…. courts applying the nexus test consider whether the alleged website deficiencies impinge on the plaintiff’s ability to have equal access to, and enjoyment of, the products and services offered at the physical location. This standard requires a court to focus on the connection between the website and the goods and services offered by the defendant.

As applied to the facts of this case, “three federal district courts found the nexus test was satisfied in an action by a visually impaired plaintiff against a credit union for a website containing defects similar to those alleged here.” Thus:

Martinez alleged the manner in which the Credit Union’s website was formatted precluded him from using his screen reading software to allow him to read the website’s content. He alleged this defect precluded him from determining what is on the website, looking for the Credit Union locations, “check[ing] out” the services, and determining which location to visit. He alleged that he could not “effectively browse for Defendant’s locations, products and services online.” He claimed that if the website were accessible, he could “independently investigate services and products, and find the locations to visit via Defendant’s website as sighted individuals can and do.” These allegations are sufficient to show the requisite nexus between the website and Credit Union’s physical locations.

The court acknowledges the potential breadth of this legal standard:

The fact that many disabled plaintiffs challenging an inaccessible website would be successful in showing the required nexus derives from the fact that websites often provide important tools to connect customers to a physical place. That is a primary reason for many websites. Depriving a person with a covered disability from access to such an essential amenity is precisely the inequity the ADA was enacted to prevent

The court also acknowledges that the DOJ still hasn’t provided any technical guidance on what actually constitutes ADA compliance for websites, despite Congress’ delegation of authority to do so and many long-standing pleas for such guidance. (You can insert your own “joke” about where the DOJ’s priorities are right now). Still, the Robles court said the DOJ’s inaction is NBD, and this court agrees.

Case citation: Martinez v. San Diego County Credit Union, 2020 WL 3396649 (Cal. App. Ct. June 19, 2020)

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