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LOS ANGELES (Legal Newsline) - A California appeals court may have closed the door on a once-lucrative area of the law for plaintiff attorneys, ruling the websites of internet-only retailers are not “places of public accommodation” under the Americans With Disabilities Act.
Lawyers file hundreds of lawsuits a year -- and send even more threatening letters -- to businesses, claiming their clients have been discriminated against by websites that lack specific features making them accessible to blind, deaf or otherwise disabled customers. The lawsuits hinge on wording in the ADA barring discrimination by places of public accommodation.
Federal circuit courts have split on the question of whether websites meet that definition, and Congress has repeatedly held hearings and called on the Justice Department to resolve the issue, without amending the ADA itself. But in an Aug. 1 decision in a lawsuit by Alejandro Martinez, California’s Second Appellate District answered with a firm “no.”
“We cannot rely, as Martinez encourages us to, on the policy goals of the ADA as a basis for ignoring the plain language of the statute and doing what Congress has for decades declined to do,” the court wrote, in a precedential opinion by Presiding Judge Frances Rothschild in Los Angeles.
Abelardo Martinez sued Cot’n Wash, an online retailer, in 2020 after his lawyers sent several letters threatening litigation over the website’s failure to accommodate blind users. Martinez was a frequent plaintiff for Pacific Trial Attorneys, a law firm that focused on ADA litigation. Abelardo later died and was succeeded in the case by his brother, Alejandro.
Martinez claimed Cot’n Wash intentionally discriminated under California’s Unruh Act by failing to respond to letters describing alleged accessibility shortcomings of its website. He also claimed the company violated the ADA.
The appeals court dispensed with the first claim by citing a California Supreme Court decision rejecting the idea plaintiffs can prove intentional discrimination under the Unruh Act simply by showing the defendant failed to respond to their demands.
The question of whether websites are public accommodations was more complicated. The federal Ninth Circuit has long held that websites aren’t places of public accommodation, as have the Third, Sixth, Ninth, and Eleventh circuits. But the First, Second, and Seventh circuits have gone the other way, and Congress has discussed the confusion repeatedly in hearings at least since 2001.
The Justice Department has filed amicus briefs in a number of cases asserting websites are covered under the ADA and this year issued guidance saying “the ADA’s requirements apply to all the goods, services, privileges, or activities offered by public accommodations, including those offered on the web.”
The appeals court dismissed this as inconclusive, however, since DOJ has never launched a formal rulemaking to declare websites public accommodations. And Congress revised the ADA in 2008 to resolve another area of confusion, the court said, without answering this question.
“Congress’s failure to provide clarification in the face of known confusion—and, to a lesser extent, the DOJ’s similar failure—is not a reason for us to step in and provide that clarification,” the court concluded. “To the contrary, it is a reason for us not to do so.”
The decision is carefully worded to apply only to retailers whose sole presences is on the web, so companies that offer the same goods and services on websites and in physical locations might still be subject to ADA suits.