Hunton Employment & Labor Perspectives

As we discussed in a previous post , the courts, the Congress, and the Department of Justice (the “DoJ”) continue to grapple with the scope of Title III of the Americans with Disabilities Act (the “ADA”) as it relates to the accessibility of private businesses’ websites for disabled people.  A decision by one state trial court in California seems to adopt a more strict reading of the definition of “public accommodation” than previous cases in California and in the Ninth Circuit Court of Appeals (which includes the federal courts in California) on the subject, which further demonstrates the difficulty that many courts, including this one, are having with these ADA website accessibility cases.

In Martinez v. San Diego County Credit Union, San Diego Superior Court Case No. 37-2017-00024673, the court recently dismissed a website accessibility case shortly after commencing trial and issued a sua sponte order for a nonsuit after briefing from the parties, holding that the defendant credit union’s website was not subject to the ADA.  Plaintiff Martinez, a site-impaired man, alleged in his complaint and discovery responses that he faced alleged “barriers” to accessing the credit union’s products and services on its website, including “empty or redundant links, instances of missing or redundant alternative text, and missing form labels… [that] prevents full and equal accessibility thereto by Plaintiff and other blind and/or visually impaired individuals.”  It is not entirely clear from the record in Martinez what nexus, if any, San Diego County Credit Union’s (“SDCCU”) website had to its physical locations, but from a review of the credit union’s website, it appears that in addition to hosting a website offering banking products and services, it also operates approximately 43 branch locations in San Diego, Orange, and Riverside counties in California.

In finding for the credit union, the Court noted the positions that the Third, Sixth, Ninth, and Eleventh Circuits have all taken requiring that a company’s website have a sufficient nexus to a physical location to be covered under Title III of the ADA, but then seemingly adopted the approach from a decision in federal court in Virginia.  The Martinez court cited a decision from the U.S. District Court for the Eastern District of Virginia, Carroll v. Northwest Fed. Credit Union, 2018 WL 2933407, *2 (E.D. Va. Jan. 26, 2018), which opined that

“[n]otably absent from the list [of “public accommodations” stated in Title III at 42 U.S.C. § 12181(7)] is the term ‘website’.  Not only is ‘website’ not found on the list, but the statute does not list anything that is not a brick and mortar ‘place’. Over the years Congress has extensively amended the ADA; however, at no point did Congress choose to add websites as a public accommodation… the Court finds that… a website does not constitute a place of public accommodation.”

The Martinez court then held that “Defendant’s website is not subject to the ADA” and reasoned that “to constitute a ‘place of public accommodation’ under Title III and its implementing regulations, a location must be (1) a facility that (2) falls within at least one of the twelve specifically enumerated categories [in 42 U.S.C. § 12181(7)].  Importantly, a location must meet both of these requirements to be a place of public accommodation.”

By so holding, this California trial court likely adopted a more narrow reading of the definition of “public accommodation” than the Third, Sixth, and Ninth Circuits – i.e., that websites are not public accommodations as a matter of law.  Ostensibly, SDCU’s website has some nexus to its physical branches, but this court still held that SDCCU’s website was not subject to the ADA.  It is not clear from the court’s order whether it weighed whether there was a sufficient nexus between SDCU’s website and its physical locations to support a Title III claim.  The Martinez case’s precedential value is limited – it is simply one California state trial court’s decision and plaintiff did not file a notice of intent to appeal, so it will likely not generate any appellate case law.  While this case was a big win for the defendant, due to the limited precedential value of the case, there is no guarantee that other courts in California, or elsewhere, will follow it.

The biggest takeaway from this decision is that in the absence of further guidance from the Congress and/or the DoJ regarding the scope of Title III, business can expect uneven decisions from the courts, which are struggling to interpret Title III with the limited guidance and case law precedent that they have.  Therefore, businesses with a brick and mortar store or other location that would qualify as a public accommodation should still evaluate the risk that Title III of the ADA may apply to their website.