October 28, 2022
Standalone Website Not a Public Accommodation
If you read our story “Is Your Website Discriminatory?” you know that the website accessibility provisions in Title III of the ADA apply specifically to places of public accommodation. 42 U.S.C. § 12182(b)(2)(A)(iii).
There is an issue, however, with how the phrase public accommodation Is defined.
Last month a California state appeals court held that an online retailer of cleaning products without a physical location cannot be held liable for maintaining a website that was inaccessible to a blind plaintiff (Alejandro Martinez v. Cot’n Wash Inc.).
Basically, the court dismissed the case because the retailer did not have a physical location. Therefore, its website did not constitute “a place of public accommodation.” According to the language of Title III of the ADA, the Act does not apply to “retail websites without any connection to a physical space.“ The court granted that although Congress seemed to recognize it was an oversight to limit the law’s applicability this way, it nevertheless for twenty years has “chosen not to amend [the Act].”
The presiding judge, Frances Rothschild even rejected the claim by the Department of Justice, contained in its amicus briefs, that it “has unofficially endorsed a view that all retail websites constitute ‘place[s] of public accommodation’ for purposes of the ADA,” thus imposing upon them a duty not to discriminate based on disabilities.
“Regardless of what the DOJ has said in amicus briefs,” said Judge Rothschild, “it has opted not to issue any regulations or formal guidance to this effect, even after repeated requests from Congress that the DOJ do so,” remarking that “weighs against, not in favor, of” affixing liability.
The Last Word: While standalone websites may be off the hook (in California at least). It’s really in everyone’s best interest for your website to follow non-discriminatory website practices. It’s the standard of a well-made website, your search engine rankings will benefit and why would you want to limit your ability to market to more people by not doing so?