Late last year, the California Supreme Court issued a ruling with implications for online businesses going forward. In White v. Square, Inc., 7 Cal. 5th 1019 (2019), a bankruptcy attorney brought a claim against Square under California’s Unruh Civil Rights Act based on allegedly discriminatory terms and conditions that limited the ability of bankruptcy attorneys to use the payment processing service. The court was asked to decide whether the plaintiff had standing under Unruh where he only visited the website and did not actually transact with Square’s online business. The court held that a person visiting a website and encountering discriminatory behavior was no different from patrons encountering discrimination the moment they enter a physical retail store. White lowers the burden for plaintiffs to bring civil rights and disability rights claims in California against online businesses.
What Has Been Done to Break Down the Walls Between Physical and Online Spaces.
Unruh Civil Rights Act
The Unruh Civil Rights Act provides that all persons within California are “free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.”[1] Since passing the underlying law in 1897, California has enacted several amendments that expanded the scope of Unruh’s protections. Over the past several decades, courts in California have cast a wide net with regard to Unruh. Unruh gained notoriety in 1985 when the California Supreme Court ruled that the common business practice of offering discounts and free admission to women at nightclubs violated Unruh.[2]
The California court of appeal has held that a Catholic Hospital’s refusal to perform a hysterectomy on a transgender male patient could constitute an intentional discrimination claim under the Unruh Civil Rights Act.[3] Another appeal court upheld the denial of online dating app Tinder’s motion to dismiss, finding the plaintiff had sufficiently alleged a claim under Unruh for age discrimination where Tinder charged consumers over the age of 30 more than it charged younger users for access to the application's advanced features.[4] A federal court in Northern California has held that blind plaintiffs sufficiently alleged a violation of Unruh where the ridesharing service Uber allowed drivers to decline service to riders transporting service dogs.[5] California courts have granted standing to bring claims under Unruh on a growing unfettered basis, including against online-only businesses.
ADA (Americans with Disabilities Act)
ADA was enacted into federal law in 1992 to ensure persons with disabilities had equal access to places of “public accommodation.” The ADA law sets out twelve categories of public accommodations covering almost any physical building or venue ranging from auditoriums to zoos.[6] As the law around the ADA developed, so has the internet. The use of online webpage-based and app-based services has become a necessity rather than a convenience, prompting ADA advocates to push public accommodations to include online websites and apps.
Lawsuits brought against website and app owners have caused a split in the appellate courts. The First, Second, and Seventh Circuit Courts of Appeals have found that a website may be a place of public accommodation without showing any nexus to a physical space.[7] The Third, Fifth, Sixth, Ninth, and Eleventh Circuits have concluded that places of public accommodation must be physical places, and that goods and services provided by a public accommodation must have a sufficient nexus to a physical place in order to be covered by the ADA.[8] Under this interpretation, a website must have a connection to a physical location as defined under 42 U.S.C. section 12181. Websites that operate entirely online would be exempt from the ADA requirements.
Since the Court’s ruling in White, at least one California Court of Appeal has ruled however that White’s holding extends the ADA from traditional brick-and-mortar locations to online websites where they are connected to a physical place of “public accommodation.”[9] The inability for a disabled person to utilize a website, even where the level of contact is minimal, may constitute an ADA violation.
Also worth noting, an ADA violation implicates the Unruh Act as well. “[N]o showing of intentional discrimination is required where the Unruh Act violation is premised on an ADA violation…” because “a violation of the ADA is, per se, a violation of the Unruh Act.”[10]
DPA (Disabled Persons Act)
DPA is California’s own statutory framework for the rights of disabled persons. In one Northern California case, an advocacy group for the blind sued Target alleging violations of Unruh, the DPA, and ADA because the company had not made its online retail site accessible to blind users.[11] The court followed the Ninth Circuit’s precedent with respect to the ADA claims (requiring a nexus to a physical location), but declined to extend that requirement to Unruh and the DPA.
What It All Means
California courts have been ruling in favor of extending civil and disabilities rights into the online space. The limitation that appears left standing is the Ninth Circuit’s limitation on the ADA to extend online only to sellers with physical locations as contemplated by the ADA statute. White opens up the possibility for litigation further, allowing online visitors standing to bring claims.
As these cases and others should make clear, Unruh, ADA, and DPA will only continue to expand their reach online. White and these statutory protections taken together establish that websites, even those with minimal levels of user engagement, may face increasing civil rights and disability rights litigation in California.
[1] Cal. Civ. Code § 51(b).
[2] Koire v. Metro Car Wash, 40 Cal. 3d 24 (1985).
[3] Minton v. Dignity Health, 39 Cal. App. 5th 1155 (Ct. App. 2019), review denied (Dec. 18, 2019).
[4] Candelore v. Tinder, Inc., 19 Cal. App. 5th 1138 (Ct. App. 2018), review filed (Mar. 12, 2018).
[5] Nat'l Fed'n of the Blind of California v. Uber Techs., Inc., 103 F. Supp. 3d 1073 (N.D. Cal. 2015).
[6] 42 U.S.C. § 12181(7)
[7] See, e.g., Morgan v. Joint Admin. Bd., Retirement Plan of the Pillsbury, Co., and others, 268 F.3d 456, 459 (7th Cir. 2001) (online insurance sales website a place of public accommodation); Nat'l Fed'n of the Blind v. Scribd Inc., 97 F.Supp.3d 565, 576 (D. Vt. 2015) (digital library is a place of public accommodation even though it is not associated with any physical location); Nat'l Ass'n of the Deaf v. Netflix, Inc., 869 F.Supp.2d 196, 200–02 (D. Mass. 2012) (Netflix's on-demand service website is a place of public accommodation even though its services are accessed almost exclusively in the home).
[8] See, e.g., Earll v. eBay, Inc., 599 Fed.Appx. 695, 696 (9th Cir. 2015) (the term “place of public accommodation” requires some connection between the good or service alleged to be discriminatory and a physical place); Ford v. Schering–Plough Corp., 145 F.3d 601, 614 (3rd Cir. 1998) (finding that the term public accommodation does not refer to non-physical access); Magee v. Coca-Cola Refreshments USA, Inc., 833 F.3d 530, 534 (5th Cir. 2016); Parker v. Metro. Life Ins. Co., 121 F.3d 1006, 1010–11 (6th Cir. 1997) (stating that a public accommodation is a physical place); Haynes v. Dunkin’ Donuts LLC, 2018 WL 3634720, at *2 (11th Cir. July 31, 2018); Gil v. Winn-Dixie Stores, Inc., 257 F. Supp. 3d 1340, 1349 (S.D. Fla. 2017).
[9] Thurston v. Midvale Corp., 39 Cal. App. 5th 634, 644 (Ct. App. 2019).
[10] Lentini v. California Ctr. for the Arts, Escondido, 370 F.3d 837, 847 (9th Cir. 2004).
[11] Nat'l Fed'n of Blind v. Target Corp., 582 F. Supp. 2d 1185, 1198 (N.D. Cal. 2007).