California State Court: ADA Can Apply to Online-Only Businesses

On August 11th, 2020, California Superior Court Judge Gregory Keosian refused to dismiss a lawsuit filed against an online-only video game retailer. The complaint, initially filed In December 2019 by Abelardo Martinez, Jr. alleged that Epic Games does not operate an accessible website per Web Content Accessibility Guidelines (WCAG) accessibility standards. The WCAG standards are recommendations created by the World Wide Web Consortium (W3C) in order to make web content more accessible to all users. With a lack of federal website accessibility guidance, the WCAG standards have become the template for how websites are built and maintained.

The defendant, Epic Games, Inc., requested in mid-2020 that the case be dismissed on the argument that Title III of the Americans with Disabilities Act (ADA) only applies to physical brick-and-mortar businesses. Judge Keosian, however, denied the request, signaling that Title III of the ADA does also apply to online-only businesses. This is the second such ruling in the span of nine months; in December 2019, California Superior Court Judge Angel Bermudez also refused to dismiss a lawsuit against an online-only business on the same basis.

History of Conflicting Court Decisions

The U.S. Court of Appeals for the Ninth Circuit has a 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, the Ninth Circuit held that Title III does not apply to online-only businesses. The Ninth Circuit is not alone in its position — the Eleventh Circuit has reached the same conclusion.

Other circuits, however, such as the U.S. Court of Appeals for the First Circuit, have ruled that businesses do not need to have a physical place of business where customers go to qualify as public accommodations, as long as they fall within the twelve categories of businesses identified by the ADA as “public accommodations.”  Those categories are:

  • Places of lodging
  • Food and drink establishments
  • Places of exhibition or entertainment
  • Places of public gathering
  • Sales or rental establishments
  • Service establishments
  • Public transportation terminals, depots or stations
  • Places of public display or collection
  • Places of recreation
  • Places of education
  • Social service center establishments
  • Place of lodging

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.

California’s Take on Website Accessibility

Under California’s Unruh Civil Rights Act, discrimination is outlawed based on sex, race, color, religion, ancestry, national origin, age, disability, medical condition, genetic information, marital status, or sexual orientation and applies to all state businesses. California Superior Court judges are opining on federal law because a plaintiff can establish a violation of the Unruh Act by demonstrating a substantive violation of Title III of the ADA. That being said, in deciding website accessibility cases under Unruh, California judges must determine whether online-only businesses are covered under the federal law.

Employer Takeaway

Although the two recent decisions by the California Superior Court are not binding in any other jurisdiction, it may signal a growing wave of similar lawsuits across the country. Employers and business owners who currently operate online-only businesses should be sure that their websites are built using the most up-to-date web accessibility standards. This will allow for sites to be user friendly to both the disabled and the general public at large.


NOTE: The details in this blog are provided for informational purposes only. All answers are general in nature and do not constitute legal advice. If legal advice or other expert assistance is required, the services of a competent professional should be sought. The author specifically disclaims any and all liability arising directly or indirectly from the reliance on or use of this blog.
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