Before getting started on our blog entry for the week, a couple of housekeeping matters are in order. First, my daughter is off to college a week from Friday. Things are very exciting and terrifying here at the same time. Accordingly, next week is going to be crazy and the week after that even more so. I may or may not get a blog entry up next week, but I will definitely not be getting up a blog entry up the week after that.


The case for this week is Martinez v. Cot’n Wash, a published decision from the Second Appellate District of the Court of Appeals of the State of California. The case involves an Internet only business that got sued by a person with a screen reader for an inaccessible website. Before bringing suit, plaintiff sent a demand letter. Notably, defense responded with their belief that the Internet site complied with the applicable WCAG level AA and asked for clarification from the plaintiff. Plaintiff then sues anyway. The Court of Appeals holds that the gateway principal rules in California and without a gateway the plaintiff has no case. As usual, the blog entry is divided into categories and they are: court’s reasoning that plaintiff’s claim fails because the website is not a place of public accommodation; and thoughts/takeaways. Of course, the reader is free to focus on any or all of the categories.



Court’s Reasoning That Plaintiff’s Claim Fails Because the Website Is Not a Place of Public Accommodation


  1. An inaccessible website is facially neutral so that the Unruh act is not activated on grounds of intentional discrimination.
  2. The listed categories in 42 U.S.C. §12181(7) mainly reference physical locations.
  3. The implementing regulations similarly define a public accommodation by referring to a “facility,” which is in turn defined, at 28 C.F.R. §36.104, as “all or any portion of buildings, structures, sites, complexes, equipment, rolling stock… or other real or personal property, including the site where the building, property, structure, or equipment is located.”
  4. A website is not identified in any of the statutory categories, which is not surprising as no commercial websites existed when the ADA was enacted in 1990. However in the 30 years since, websites have become central to American life.
  5. The regulatory agency charged with implementing the ADA for title II and title III (DOJ), of the ADA has previously endorsed the applicability of the ADA to title III websites but has not provided specific regulatory guidance.
  6. The federal courts are all over the place when it comes to whether a website must be meaningfully accessible to people with disabilities.
  7. There are two main views of whether websites are places of public accommodation. The first view is that websites are places of public accommodations under the ADA. That is the view of the First, Second, and Seventh Circuits. Courts adopting this view have relied on the service establishment category of the statutory definition, and particularly travel services being contained in the illustrative list of these establishments. That is, it would be irrational to conclude that persons who enter an office to purchase services are protected by the ADA, but persons purchasing the same services over the telephone or by mail are not. These courts also emphasized the critical nature of websites for transacting business today, and that Congress made it clear that the ADA was meant to adapt to changes in technology.
  8. The second view is that websites are not places of public accommodations under the ADA, but a denial of equal access to a website can support an ADA claim if the denial has prevented or impeded a disabled plaintiff from equal access to, or enjoyment of, the goods and services offered at the defendant’s physical facilities. This is the view of the Third, Sixth, Ninth, and 11th These courts have said that essentially all of the categories listed in 42 U.S.C. §12181(7) describe a physical location. That said, these courts also recognize that a website can be important to providing access to defendant’s place of public accommodation and to a disabled person’s ability to use and enjoy services provided those places if a nexus exists.
  9. California courts have consistently gone with the nexus theory, or gateway, when it comes to when websites must be meaningfully accessible to persons with disabilities.
  10. The plain meaning of the term “place,” weighs against an interpretation that a public accommodation need not be a physical place.
  11. Neither title III nor any implementing regulation provide a different definition of the word for the purposes of title III when it comes to what is a place of public accommodation.
  12. For that matter, the state of technology when the ADA was passed in 1992 shows that Congress was aware that the term “place of public accommodation,” carried a connotation of physical space and thus could exclude certain sales and retail establishments from the scope of title III based on a lack of connection to a physical space. After all, there were countless businesses operating outside of brick-and-mortar premises in 1990, including some that have been in operation for decades, such as mail order catalogs. Therefore, Congress’s decision to use the phrase “place,” the plain meaning which involves physical space, could easily be understood to be an intentional exclusion of businesses without any physical presence from the scope of title III.
  13. In 2000, United States Supreme Court noted that a “place,” connotes a physical space with respect to the New Jersey law protecting against discrimination in places of public accommodations.
  14. The plain meaning of the term “place of public accommodation,” is not dispositive because decades of conflict in federal case law interpreting the phrase establishes that the term is ambiguous.
  15. For that matter, the term “facility,” under the Code of Federal Regulations is also ambiguous for largely the same reasons.
  16. Since a place of public accommodation must per the applicable federal regulation be a “facility,” the only way a website might constitute a facility is if it specifically qualifies as one of the items listed in the definition of facility.
  17. The term “other… personal property,” appears at the end of the list of exclusively physical spaces and, as to “equipment” or other “personal property,” presumes the existence of a site where the property is located.
  18. It could make perfect sense that treating retail websites in one way and physical locations in another is the way to go. It is not absurd or irrational for Congress to address discrimination by online retailers in a different manner than the way it addresses discrimination by brick and mortar retailers. Subject to a disparate bundle of economic and business concerns. Each is very much its own animal.
  19. Since brick-and-mortar stores conduct business differently than do retail website, the type and extent of the burdens antidiscrimination measures impose on a business will necessarily differ depending on whether the business is operating through a physical storefront or a purely digital one.
  20. Given the different burden benefit calculus that applies in determining how to impose accessibility requirements on the two different types of retailers, it isn’t an absurd result to say that title III addresses only physical retailers and the question of how to deal with purely digital retailers remains a future question for Congress. Accordingly, it is not an absurd result to interpret title III as treating transactions differently depending upon whether they are purely digital or have a physical component. It also does not mean that this interpretation would inevitably frustrate the manifest purposes of the ADA as a whole.
  21. The mandate to interpret language broadly to take into account changes in technology is not a blanket authorization to require anything achieving the ADA’s overall goal of equal access. It is simply not clear that Congress intended such a result when drafting title III of the ADA.
  22. Despite DOJ taking the position over the years that websites are places of public accommodations, see this blog entry for example, the DOJ has consistently passed up the chance to draft regulations with respect to website accessibility despite courts being all over the place and pressure being put on DOJ by Congress and others to do so. The only conclusion that can be drawn from the failure of the DOJ to enact regulations is that neither Congress nor the DOJ officially endorses the approach that websites are places of public accommodations.
  23. In 2008, the ADA was amended and Congress passed up a chance to make clear that Internet sites were places of public accommodations.
  24. Congress and DOJ’s failure to provide clarification in the face of tremendous confusion is not a reason for a court to step in and provide that clarification. In fact, it is a reason for a court not to step in. That is, it is the job of the courts to interpret the law as written.





  1. The court makes a big deal over how the DOJ has not put forward regulations with respect to Internet accessibility. Just within the last couple of weeks, DOJ has notified the public that they intend to issue rules when it comes to Internet accessibility and title II entities. The DOJ has said that there will be proposed rules coming out with respect to Internet accessibility involving title II entities in April 2023 with the final rules coming in the summer of 2023. This court makes a big deal over how there are no regulations in the area. That will be changing next year. That said, I am not aware of a notice to issue regulations on Internet accessibility with respect to title III entities, which was the kind of entity involved in this case. It is entirely possible that the title II rulemaking process will very much inform the title III rulemaking process but that remains to be seen.
  2. The strongest argument that the Internet is not a place of public accommodation is that Congress passed up a chance to say as much when the ADA was amended.
  3. It isn’t accurate to my mind to say that there are only two views with respect to when an Internet site must be meaningfully accessible to a person with a disability. To my mind, there are currently four views. There were five views before the 11th Circuit mooted Gil v. Winn-Dixie. The four views are: the Internet is always a place of public accommodation; the Internet is never a place of public accommodation; gateway; and the Internet is a place of public accommodation if what is going on is of the type listed in 42 U.S.C. §12181(7). Before Gil v. Winn-Dixie was mooted, the 11th Circuit had a fifth theory namely, the Internet is never a place of public accommodation but the question is something else entirely. We discussed the now mooted decision in Gil v. Winn-Dixie, here.
  4. The cases that go with the gateway or nexus approach are all over the place with respect to what is a sufficient nexus. Some talk about a connection to the physical place while other cases talk about the person actually having to show that he or she or they actually visit that physical place.
  5. Very strange that the court talks about a 2000 Supreme Court decision suggesting that a place is a physical location but ignores an even more recent Supreme Court decision, South Dakota v. Wayfair, which we discussed here, strongly suggesting that a place does not have to be a physical place. To my mind, any plaintiff attorney in an Internet only accessibility situation commits legal malpractice by not bringing up South Dakota v. Wayfair. I am at a complete loss as to why this case has not come up as much as it should have in this kind of litigation. Perhaps, it is because it is not a disability discrimination case at all and attorneys are not looking at tax matters for analogous cases. South Dakota v. Wayfair is, in my opinion, the strongest argument that a place of public accommodation does not have to be a physical place.
  6. Could Congress really have meant to give such an advantage to Internet sites with respect to accessibility rules over brick and mortar sites considering the difference in costs of operating each kind of place? The court says such a distinction is perfectly logical, but I am not so sure of that, especially now given the maturity of e-commerce.
  7. California, as we discussed here, has made it very easy to get standing. However just because you can get standing, does not mean you win on the merits. Martinez says that under California’s Unruh Act, Internet only businesses not attached to a brick-and-mortar store do not have to worry about being meaningfully accessible to persons with disabilities. That said, don’t forget about the Rehabilitation Act. Plaintiff’s attorney will want to consider whether the particular Internet site takes federal funds or has outstanding PPP loans. The one issue that will have to be dealt with the Rehabilitation Act, assuming federal funds are involved, is proving causation because causation under the Rehabilitation Act is, “solely by reason of,” which after Bostock means precisely that. It isn’t clear to me whether a discriminatory facially neutral site could possibly reach the level of, “solely by reason of.”
  8. WCAG level AA of the most applicable WCAG standard is the best preventive law approach for minimizing successful website and accessibility lawsuits.
  9. Expect Unruh Act lawsuits alleging Internet and accessibility issues to go away down after this decision. At a minimum, you can bet every defense lawyer “go to,” case when it comes to Unruh Act Internet inaccessibility suits. You can also expect this case to be used by defense lawyers defending website inaccessibility lawsuits under title III of the ADA because much of the reasoning in this case is easily transferable. Of course, Martinez is nothing more than persuasive authority at the federal level, but even so defense attorneys would be foolish not to bring it up.