Another California Appellate Court Holds That ADA Does Not Apply to a Virtual Business’s Website

On September 13, 2023, the Court of Appeal of the State of California, Fourth Appellate District, covering Orange County and San Diego County and the southernmost areas of California, held that the Americans with Disabilities Act (ADA) does not apply to the website of a virtual business, or one that does not operate out of a brick-and-mortar location. Because Section 51(f) of California’s Unruh Civil Rights Act (Unruh Act) makes any ADA violation a violation of the Unruh Act, the ruling effectively shuts down claims under that portion of the Unruh Act for purely virtual businesses.

Quick Hits

• The California Court of Appeal, Fourth Appellate District, held that the ADA does not apply to the website of a virtual business.
• The court held that the plaintiff had failed to plead a cause of action under Section 51(b) of California’s Unruh Civil Rights Act.
• Because Section 51(f) makes any ADA violation a violation of the Unruh Civil Rights Act, the ruling effectively shuts down claims under that portion of the Unruh Civil Rights Act for purely virtual businesses.

The Fourth Appellate District’s ruling in Martin v. Thi E-Commerce, LLC follows a very similar ruling just last year out of the Second Appellate District, covering Los Angeles County and certain surrounding counties. While the appellate districts in California give precedential value to any ruling by any California Court of Appeal, regardless of appellate district, they do not always do so, which makes this a significant step toward establishing a reliable precedent for all California trial courts.

Like the Second Appellate District’s decision in August 2022 in Martinez v. Cot’n Wash, the Fourth Appellate District in Martin v. Thi-E Commerce, LLC, also took the important step of holding that the plaintiff, Dominick Martin, failed to plead a cause of action under Section 51(b) of the Unruh Act. Under Section 51(b), the court would have permitted a claim to go forward against a virtual business, but that section requires a showing of intentional discrimination on a protected basis, such as disability in this case. The disparate impact on a protected status of some neutral conduct used by all individuals, like the website, is not actionable under Section 51(b).

But, like Martinez v. Cot’n Wash, it was the way in which the court disposed of the Section 51(b) claim that will make it particularly hard for plaintiffs to allege that a website intentionally discriminates on the basis of disability. Alleging that the defendant knew about the barriers on its website through a demand letter but did not adequately correct the barriers was inadequate to state a claim, the court held. Although the court held out the possibility that a plaintiff could allege “extreme situations where the [disparate] impact is so significant, and the amelioration [of the website] so trivial, that intentional discrimination is a legitimate inference from a failure to correct. But those would be exceptional cases, not the rule.”

The decision marks a significant strengthening of defenses to claims made in California courts under either the ADA or Unruh Act that the websites of purely virtual businesses are covered by those laws.

Businesses with physical locations open to the public cannot take comfort from the decision, as both the ADA and Unruh Act continue to require the websites of those businesses—or, at the very least, those portions of the websites with a nexus, or connection, to the physical locations—to be made accessible. Indeed, a committee in the California State Legislature just recently tabled legislation that would have amended the Unruh Act to make it unlawful to develop a website that did not conform to the Web Content Accessibility Guidelines (WCAG). While that legislation did not make it out of committee in the recently ended legislative session, all indications are that similar legislation will be proposed in future sessions.

It is, therefore, important for all businesses to consider making their websites conform to WCAG, version 2.1, Levels A and AA. As we have noted, that standard may eventually be adopted by the U.S. Department of Justice, for all websites covered by Title II of the ADA, which covers state and local governments. Designing to that level may provide adequate protection from claims that a business has failed to try to comply with the nondiscrimination mandate in the ADA.

Ogletree Deakins’ Disability Access Practice Group will continue to monitor developments and will publish updates on the California and Disability Access blogs as additional information becomes available.

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