January 30, 2023

Volume XIII, Number 30


January 27, 2023

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Is the Tide Turning on Website Accessibility Claims? California Court of Appeal Upholds a ‘Bona Fide Intent’ Requirement

The Court of Appeal of the State of California, Fourth Appellate District, recently handed a potentially significant website accessibility win to the business community under the Unruh Civil Rights Act (Unruh Act) when it upheld a jury verdict in Thurston v. Omni Hotels Mgmt. Corp. (Cal. Ct. App. Sept. 23, 2021), finding that the blind user of a hotel’s website reservation mechanism lacked a “bona fide intent” to make a hotel reservation. Paired with the Eleventh Circuit Court of Appeals’ opinion in Gil v. Winn-Dixie Stores, Inc., this recent decision may signal the rumblings of growing judicial resistance to the overwhelming number of website accessibility claims.

The Court of Appeal’s decision rests firmly on a 2019 Supreme Court of California decision (White), often cited by the plaintiffs’ bar for the proposition that one need not be a paying customer to have standing to make a challenge under the Unruh Act. While announcing that potentially expansive standing principle, the White court also held that “a plaintiff cannot sue for discrimination in the abstract, but must actually suffer the discriminatory conduct.” As to online businesses, the court held that an Unruh Act claimant must present sufficient evidence to overcome the online defendant’s argument that he or she “did not actually possess a bona fide intent to sign up for or use its services.”  Because the White case was decided on a challenge to the pleadings, accepted as true, the court held that the plaintiff had standing to proceed.

Unlike White, there was ample evidence here to support the jury’s verdict that the plaintiff lacked such “bona fide intent.” Among other things, the plaintiff did not use any of the multiple available means to make a reservation (including telephone reservations or third-party hotel reservation services) and never made any hotel reservation for the alleged intended visit to the area of the hotel.

Will This New Defense Argument Slow Down Claims?

The short answer is probably not, though it may realign the focus of these claims to certain kinds of businesses and industries. As in White, it is easy for plaintiffs to plead their complaints sufficiently to establish standing. That means that any victory will come down the road at summary judgment or trial, a result that is bound to be far more expensive in achieving than reaching a settlement at the outset of an action or claim. Moreover, while it may be difficult (and costly) for someone claiming to want to make a hotel reservation to prove a bona fide intent to make that reservation, the analysis may differ for other businesses and industries.

But the case does provide another important arrow in the quiver for those businesses displaying a growing resistance to making these early settlements, often because they have invested substantially in website remediation efforts and still find themselves the target for these frequent claims. It is always helpful to have a second, alternative basis for ruling and one that is likely to have some amount of jury appeal.

Are We Seeing a Trend That May Lead to Lasting Changes in Website Accessibility?

The short answer to this question is that it is far too early to tell. While it is true that the last several months have seen victories for businesses in the website accessibility arena in the Eleventh Circuit, the Eastern District of New York, and now in the Court of Appeal of the State of California, none of these decisions has binding impact on the many jurisdictions available to plaintiffs in which they sue, and none shuts down the availability of certain website accessibility claims. Indeed, it seems highly unlikely that the courts will shut down website accessibility claims altogether, at least without some clear indication from the U.S. Congress, state legislatures, or regulatory agencies. It was only 2019 when the Supreme Court of the United States passed on an opportunity to limit these claims when it denied review of a website accessibility claim out of the Ninth Circuit.

But the collection of decisions, from vastly different courts, suggests that the judiciary may be growing wary of the massive multiplication of website accessibility claims and looking for established means to stem the tide. That can only be welcome news for the business community, though it may not change the approach to a specific claim.

Should Businesses Suspend or Delay Website Remediation Efforts?

The short answer to this question is again “probably not,” but the answer may depend, in part, on the type of business or industry in which one operates and what services and amenities are available online. There are a variety of hooks to snare any given website under Title III of the Americans with Disabilities Act or state laws like California’s Unruh Act, so adding this one defense may not help a business if there are other bases for covering the website’s accessibility.

© 2023, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved.National Law Review, Volume XI, Number 287

About this Author

David Raizman, Disability RIghts Practice, Attorney, Ogletree Deakins Law Firm

David Raizman is nationally known for his disability rights practice, specifically for his work under Title III of the Americans with Disabilities Act. In 2012, he was recognized by the Los Angeles Daily Journal as one of the top labor and employment attorneys in California and has been recognized multiple times as a Southern California Super Lawyer.

David works extensively with hotels, sports franchises, stadium and arena owners and operators, amusement parks, theaters, retailers, municipalities and many other clients with operations open to the public to help...