I now have an embarrassment of riches. A whole bunch of cases in my pipeline. It happens sometimes that way. Before I get started, if you are the father of a daughter that plays athletics or a daughter that played athletics and wants a book that explains the impact that can have on a person, then you can’t do better than this book, State by Melissa Isaacson. In the interest of full disclosure, her book covers the time of my last three years at the same high school and my freshman year in college. She was one year behind me. I knew many of the girls profiled in this book by sight, but nothing beyond that. I also did attend the games in high school and at least once during my freshman year of college. I did, however, know the coach of the state championship team. As a result of a mutual love for country music at the time, he wound up being my personal driver education instructor because no other person in near north suburban Chicago at that age was interested in country music (on car trips, I will now turn on 70s-90s country music, but otherwise today, I listen to classical and jazz). State is right up there among the best sports memoirs I’ve ever read.

 

Turning to the blog entry of the day, I narrowed it down to two different ones. The 11th Circuit just came down with a decision on a case that we have blogged on twice before. So, I am going to get to that one. However, the absolute hottest area of ADA litigation is Internet accessibility. Recently, the Supreme Court of California in a non-disability related case, just came down with a holding that will likely send the number of Internet accessibility cases in California through the roof. Since California is the most populous state in the country, this is big news. As usual, the blog entry is divided into categories and they are: facts; issue presented; holding; court’s reasoning; and takeaways. Of course, the reader is free to focus on any or all of the categories. The blog entry is on the short side, I’m figuring the reader is probably going to read the whole thing.

 

I

Facts

The case came to the California Supreme Court by way of a Ninth Circuit decision certifying the question for consideration by the California Supreme Court. The facts are pretty simple. Square offers an Internet service allowing individuals to accept electronic payment without themselves directly opening up a merchant account with any Visa or MasterCard member bank. Square does not charge users any fee to register for services. Rather, Square collects a percentage of every transaction as well as a flat fee for each transaction. The terms of service states that the user cannot use Square if they are a bankruptcy attorney or a collection agency engaged in the collection of debt. After thoroughly investigating the matter, White, a bankruptcy attorney, decided not to click continue on the website because he had a letter from Square’s counsel to a business saying that signing up for Square under such circumstances would be fraudulent. White then sues for violating the Unruh Act.

 

II

Issue Presented

Does a plaintiff have standing to bring a claim under the Unruh Civil Rights Act when the plaintiff visits a business website with the intent of using it services, encounters terms and conditions that allegedly deny the plaintiff equal access to its services, and then leaves the website without entering into an agreement with the service provider?

 

III

Holding

A person who visits a business’s website with intent to use its services and encounters terms or conditions that excludes the person from equal access to its services has standing under the California (Unruh) Civil Rights Act.

 

III

Court’s Reasoning

  1. The purpose of the Unruh Civil Rights Act is to create and preserve a nondiscriminatory environment by banishing or eradicating arbitrary invidious discrimination by California business establishments.
  2. The Act protects each person’s inherent right to equal access to all business establishments and has a broad remedial purpose and overarching goal of deterring discriminatory practices by businesses. Accordingly, the Act must be liberally construed to carry out that purpose.
  3. When a person visits a business’s website and encounters a discriminatory provision in the business’s terms of service, that person that has experienced an interaction separate and apart from merely learning about a business’s discriminatory policy or practice secondhand.
  4. It is not any different than the law not requiring a black plaintiff to make use of a black only facility in order to have standing to pursue a claim. In fact, the same rule applies where a person visits and intends to patronize and unattended establishment generally open to the public, such as a self-serve kiosk, but then encounters a sign prohibiting access on the basis of a person’s membership in a protected category. Such individuals do not need to violate or attempt to violate the exclusionary policy before bringing a claim.
  5. White was effectively refused service by Square upon visiting its website with the intent of subscribing and then encountering its allegedly discriminatory terms of service.
  6. With respect to claims ballooning as a result of the decision, if that is going to happen, then it is up to the legislature to fix it.

 

IV

Takeaways

  1. The court uses both the term “terms and conditions,” and the term, “terms or conditions.” The distinction is important. The term “terms and conditions,” typically in our business refers to a legal document, i.e. terms of service. On the other hand, “terms or conditions,” literally has two separate meanings. It literally addresses terms and separately conditions. The inability of a screen reader user or a voice dictation user, such as myself, to use an Internet site is clearly a condition that person is faced with. That isn’t necessarily the same as a terms and conditions document. So, look for lots of litigation over whether the California Supreme Court meant terms and conditions as a document or whether it meant terms or conditions as separate concepts.
  2. Very interesting that the California Supreme Court brings up the self-serve kiosk. We discussed that case here. In that situation, the United States Supreme Court denied certiorari. However, in California anyway, a plaintiff now has California Supreme Court precedent to argue that a kiosk needs to be nondiscriminatory to protected classes, such as persons with disabilities.
  3. California not too long ago passed a law trying to get a handle on architectural barrier litigation under its Civil Rights Act. One wonders if the California legislature will not wind up doing the same with respect to website accessibility litigation. Since California already has the ability to get damages for violating the ADA under the Unruh Act even where the ADA does not allow for damages, look for Internet accessibility cases to absolutely balloon in California.
  4. Readers may want to look at this article, which I published in law technology today on August 12, to help understand the legal universe of Internet accessibility. It also contains some ideas on how to deal with it.
  5. Remember, under the ADA, the question is going to be meaningful accessibility.
  6. I am not a California licensed attorney even though I received my J.D. degree from the University of San Diego. I knew early on that I was not going to stay in California. So, I never took the California bar. When it comes to the California (Unruh) Civil Rights Act, be sure to get a licensed California attorney involved.

One Response to Website Litigation in California About to get a Whole Lot Bigger

I saw two job postings this month looking for Assistive Technology professionals in higher ed that also had experience in web design and accessibility. This tells me HR doesn’t understand enough about web design and accessibility either and needs to read your blog. Isn’t this a bit like asking for a plumber who also happens to “sort of” be an electrician? And sort of is ok?….
The DOL doesn’t have a job description for either position so no wonder things are all over the place and out of compliance.

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