Happy New Year! 2023 was a good year for Converge Accessibility. In terms of legal cases, however, the year ended fairly quietly.
Failing to Remove a Barrier is Not Necessarily Intentional Discrimination
First up this month is Martin v. SoundCloud, Inc., 2024 Cal. App. Unpub. LEXIS 42 (Cal. Ct. App. 2024), in which Dominick Martin sued SoundCloud (an online-only company) under California’s Unruh Act because he was unable to navigate its website with a screen reader. As readers of this blog know, this kind of lawsuit would fail under the ADA in California because the plaintiff could not meet the nexus standard. Also, his lawsuit would fail under California’s Unruh Act unless the plaintiff could prove intentional discrimination.
In the SoundCloud case, the plaintiff’s attorney sent a letter to SoundCloud before initiating the lawsuit. In that letter, he noted that SoundCloud’s website was inaccessible and that he intended to file a lawsuit shortly. Based on this letter, the plaintiff argued that SoundCloud knew that it was discriminating against blind individuals—thus satisfying the requirement of showing intent.
The court disagreed. First, it noted that, “because intent to discriminate cannot be shown by evidence of a disparate effect of a neutral structure, it also cannot be shown by a failure to address or correct the claimed disparate effect.” Id., at *9. In other words, simply pointing out that a barrier exists doesn’t mean that failing to remove that barrier constitutes intentional discrimination. This holding appears to be directly at odds with a case we discussed last month, Hunthausen v. Johnny Was, LLC, 2023 Cal. Super. LEXIS 100467 (Cal. Super. Ct. 2023), where the court held that the requirement for intent could be met by alleging that the defendant continued to maintain an inaccessible website after being notified it had barriers.
Second, the court in SoundCloud noted that the letter from Mr. Martin’s attorney “did not identify particular features of the Web site that were inaccessible to Martin or identify what SoundCloud would need to do to make its Web site fully accessible.” SoundCloud, at *9. While the Johnny Was opinion is short on details, knowledge of specific barriers may be the lynchpin to distinguishing these two cases because the Johnny Wascourt noted that,
By alleging that Defendant did not correct the barriers after being notified about the discriminatory nature of the barriers, Plaintiff has pled knowledge of the access problem sufficiently for the pleading stage. This, in turn, suffices for pleading Defendant's intent. The allegations are sufficient to place Defendant on notice of Plaintiff's theory of intent: that Defendant continued to offer a non-compliant website even after learning about the existing barriers. (See Ruiz v. Musclewood Inv. Props., LLC (2018) 28 Cal.App.5th 15, 22 (in Disabled Persons Act claim, knowledge of defects along with lack of action to rectify in response to an attempt to obtain corrective action, may permit an inference of intent).)
Jonny Was, at *8.
So what’s the bottom line here? First, if you are a plaintiff suing an online-only company using the Unruh Act, you may be able to meet the requirement for alleging intentional discrimination by (1) telling the defendant about specific barriers on its website and (2) asserting that they continued to do business despite knowing about those barriers. Second, if you’re a company that gets a demand letter from a plaintiff or if someone identifies specific barriers on your website, be sure to talk to your attorney quickly because doing nothing could really hurt your case if you get sued.
Gentle Rumbling for Public Sector Digital Accessibility
Last month, New York State passed S3114A, which required all New York state agencies to comply with WCAG. Not to be outdone, Rhode Island introduced two bills (S 2037 and H 7159) to require their state agencies to meet WCAG. Both New York’s law and the pair of Rhode Island bills follow the model of requiring state agencies to certify every two years that their sites meet WCAG. They also only apply to state agencies and not to local municipalities.
All of this is a far different approach from Colorado, which remains on the cutting edge with HB 21-1110. That law not only required state agencies to meet WCAG but also applied the law to local municipalities and made all public entities in Colorado subject to liability of $3,500 per violation! At least it will be a lot easier for Rhode Island and New York State agencies to buy accessible technology after their vendors fix all of their accessibility problems to satisfy their Colorado customers.
The Virginia legislature is considering a different approach. In their HB 1355, the legislature is considering a Section 508-like procurement-focused approach to digital accessibility. Specifically, all state agencies and local municipalities of more than 50,000 residents would be required to obtain Accessibility Conformance Reports when buying or modifying information or digital technologies. The bill would also require each entity to appoint a “Digital Accessibility Coordinator” and to establish a grievance process.
Western District of Pennsylvania Supports Nexus Requirement
Just over two years ago, I discussed Douglass v. Blendjet, 2022 U.S. Dist. LEXIS 171718 (W.D. Pa. 2022), where the court held that a purely online company could be sued for selling products through its inaccessible website. In order to come to that conclusion, of course, the court had to reject the nexus test.
I was a little quick to conclude that the Western District of Pennsylvania had rejected the nexus test because this month brought us Murphy v. Spongelle LLC, 2024 U.S. Dist. LEXIS 12340 (W.D. Pa. 2024), where the district court held that a purely online only company could not be sued under Title III without demonstrating that there was a nexus between the website and physical place of public accommodation.
The district court’s analysis was pretty plain and simply relied on narrow Third Circuit opinions to conclude that the ADA only applies to physical places of public accommodation and, therefore, websites are not covered without some nexus to such a physical place.
Nothing in this post should be interpreted as legal advice or as forming an attorney-client relationship. It is offered for educational purposes only. You should always contact a qualified attorney in your area to discuss your legal rights and responsibilities.
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