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Online retailer not liable for inaccessible website under ADA


A California state appeals court held Monday that an online cleaning products retailer without a physical location cannot be held liable for an inaccessible website under the state’s discrimination law, in litigation filed by a blind plaintiff.

The complaint alleged that Philadelphia-based Cot’n Wash Inc. violated the state’s Unruh Act, which provides protection from discrimination by businesses, “by intentionally maintaining a retail website that was inaccessible to the visually impeded because it was not fully compatible with screen reading software,” said the ruling by the Los Angeles-based California appeals court in Alejandro Martinez v. Cot’n Wash Inc., in affirming a lower court ruling.

The California Supreme Court “has held that the discriminatory effect of a facially neutral policy or action is not alone a basis for inferring intentional discrimination under the Unruh Act,” a three-judge panel ruled.

The ruling also held that for Title III of the Americans with Disabilities Act, which prohibits disability discrimination in public accommodations and commercial facilities, to apply, there must be a connection to a physical space.

The ADA’s “plain language does not establish that under Title III “purely digital retail websites are ‘places of public accommodation,’” the ruling said.

Attorneys in the case did not respond to requests for comment.

Kristina Launey, a partner with Seyfarth Shaw LLP in Sacramento, California, said while the ruling may be appealed, the California Supreme Court has discretion as to which cases it accepts for review, and does so in only about 5% of cases.

There are no federal regulations at this point that explicitly cover the issue of website accessibility for the blind under the ADA. Ms. Launey said in July, the Department of Justice said it planned to begin the rulemaking process to enact website accessibility regulations under the ADA’s Title II, which applies to public entities, which means Title III-related regulations may follow.

Website accessibility lawsuits filed in federal court increased 14%, to 2,895, in 2021, which does not include state court filings, according to Seyfarth Shaw data.