Title III of the Americans with Disabilities Act (“ADA”) prohibits public accommodations from discriminating on the basis of disability and requires such public accommodations to be accessible. Historically, making public accommodations accessible required installing ramps, handrails, and making other physical alterations to property.

In recent years, ADA plaintiffs and their attorneys have more frequently asserted violations of the ADA and California’s Unruh Civil Rights Act (“Unruh Act”) based on allegations that companies’ websites were not accessible to those with visual impairments and other disabilities. Among other things, websites can be made more accessible to those with visual impairments by ensuring that the website is compatible with screen reading software.

In a recent case[1], a visually impaired individual filed suit against a company alleging violations of the ADA and the Unruh Act because his screen reader software did not work with the company’s website. The company is an online-only business, meaning that it has no physical locations for the public or consumers to visit.

To succeed on his claim, the plaintiff needed to prove that the company had committed intentional discrimination or had violated Title III of the ADA. The plaintiff first alleged that the company committed intentional discrimination by failing to address his complaints regarding the accessibility of the website. The California Court of Appeals held that the company’s failure to address a complaint did not constitute intentional discrimination.

The Court then turned to whether the alleged inaccessibility of the website violated Title III of the ADA. In its analysis, the Court looked at the language of the ADA and the definition of “public accommodation.” In doing so, the Court noted that the definition included terms such as “place” or “facility,” which indicate a physical location as opposed to an online presence.

Whether websites for online-only businesses are public accommodations has been a source of dispute, with Congress and the Department of Justice failing to provide any clarity on the issue despite recognizing the confusion in the field. The Ninth Circuit Court of Appeals, which rules on appeals from California federal courts, has held that online-only businesses are not public accommodations.

The takeaway from the Martinez Court’s decision is that online-only businesses which operate in California are not currently required to comply with the public accommodation requirements under the ADA. Although it would be best practice for a business to be accessible to all, there are not any penalties for online-only businesses who fail to make their websites accessible. However, it is important that online-only businesses do not intentionally discriminate, as that would expose them to potential liability under the Unruh Act.

[1]  Martinez v. Cot’n Wash, Inc., 2022 WL 3025828 (Cal. Ct. App. 2022).