The U.S. Court Appeals for the Ninth Circuit has longstanding precedent that only businesses with a brick and mortar location that customers can physically visit are “public accommodations” covered by Title III of the Americans with Disabilities Act. Following this precedent, in 2015, it held that Title III does not apply to online-only businesses such as eBay and Netflix. The Ninth Circuit is not alone in its position—the Eleventh Circuit has reached the same conclusion. However, other circuits, such as the First Circuit, have concluded that businesses do not need to have a physical place of business where customers go to qualify as public accommodations so long as they fall within the twelve categories of businesses identified by the ADA as “public accommodations.” While the First Circuit did not reach this conclusion in a website accessibility case, district courts in the First Circuit have applied this precedent to hold that online-only businesses are covered by Title III of the ADA.
Because neither the U.S. Supreme Court or the California Supreme Court have considered the issue of whether an online-only business is covered by Title III of the ADA, California state court judges have latitude in deciding this issue. Last week, California Superior Court Judge Gregory Kiosan decided that Title III of the ADA does cover online-only businesses and refused to dismiss a lawsuit filed against an online-only video game retailer. In December 2019, California Superior Court Judge Angel Bermudez also refused to dismiss a lawsuit against an online-only business on the same basis.
California Superior Court judges are opining on federal law because a plaintiff can establish a violation of California’s Unruh Act by demonstrating a substantive violation of Title III of the ADA. Thus, in deciding website accessibility cases under Unruh, California judges must determine whether online-only businesses are covered under the federal law.
Although the decisions of these two judges are not binding on any other California judges and may ultimately be overruled by a California appellate decision, they suggest that California state court may be a good choice for plaintiffs seeking to sue an online-only business for an allegedly inaccessible website, and provide a likely explanation for why the number of website accessibility lawsuits filed in federal courts in California is fewer than one might expect.
By Minh N. Vu