Hunton Retail Law Resource

In an August 2022 decision, the California Court of Appeal, Second Appellate District, held that retail websites without any connection to a physical space, such as a brick-and-mortar store, do not constitute “places of public accommodation” and, thus, are not within the purview of Title III of the American with Disabilities Act (“ADA”) or the Unruh Civil Rights Act (the “Unruh Act”). 

Enacted in 1959, the Unruh Act is a California law that prohibits any business in California from engaging in unlawful discrimination. Under the Unruh Act, a plaintiff is entitled to recover up to three times actual damages or minimum statutory damages of $4,000 per violation. Civil Code § 52(a). In 1992, after the enactment of the ADA, the Unruh Act was amended to incorporate ADA standards, declaring that a violation of the ADA also would constitute a violation of the Unruh Act. 

In Martinez v. Cot’n Wash, Inc., No. B314476, 2022 WL 3025828 (Cal. Ct. App. Aug. 1, 2022), a visually impaired consumer filed suit against an operator of an ecommerce website under the Unruh Act, alleging that the operator intentionally maintained an inaccessible website that was not fully compatible with screen reading software. The trial court sustained the operator’s demurrer and entered a judgment of dismissal, finding that: (1) the alleged inaccessibility of operator’s website did not violate the ADA and (2) the complaint did not allege facts sufficient to establish discriminatory intent, which the Unruh Act requires in the absence of an ADA violation. The consumer appealed.

The Second District Court of Appeal affirmed the trial court on both grounds. First, the appellate court found that the discriminatory effect of a facially neutral policy or action is not alone a basis for inferring intentional discrimination under the Unruh Act. Second, and more significantly, the court determined that there could be no ADA violation because the operator’s website, which had no connection to a physical space (e.g., a brick-and-mortar store), does not constitute a “place of public accommodation” under the ADA. 

The Martinez decision is significant because it shows California state courts moving into alignment with the Ninth Circuit in holding that ecommerce businesses without a physical presence are not subject to the ADA. See, e.g., Cullen v. Netflix, Inc., 600 F. App’x 508, 509 (9th Cir. 2015). Circuits are split on this point. See, e.g., Carparts Distribution Ctr., Inc. v. Auto. Wholesaler’s Ass’n of New England, Inc., 37 F.3d 12, 19 (1st Cir. 1994).

Ecommerce businesses operating in California should consult with their counsel to determine whether their websites comply with state and federal laws prohibiting discrimination.