Last month, a California judge held that a restaurant’s inaccessible website violated the state’s Unruh Civil Rights Act, which prohibits discrimination on the basis of disability, among other grounds. The court ordered the defendant to bring its website into compliance with WCAG 2.0 Level AA success criteria and pay $4,000 in statutory damages.
The decision was written by Judge Samantha Jessner of the Superior Court of Los Angeles County, who interpreted the Unruh Act in light of website accessibility decisions under the Americans with Disabilities Act (ADA). Unlike the vast majority of digital accessibility cases, which are brought in federal court under the ADA, this case was brought in California state court under the Unruh Act, without raising a separate ADA claim.
Judge Jessner followed the majority of courts in finding that the ADA extends to the websites of organizations categorized as public accommodations under the law. She did not, however, formally adopt the nexus test, requiring that a website have sufficient connection with a physical location, though the test would very likely have been met.
The case, Thurston v. Midvale Corp., was brought in May 2017 by Cheryl Thurston, who is blind, after she attempted—and failed—to access the website of The Whisper Restaurant and Lounge in Los Angeles. Thurston, who used a screen reader to visit the site, alleged that she was unable to access the restaurant’s menu, make a reservation, or even determine if it was possible to make a reservation online due to irregular coding; she also noted that many images on the site lacked alternative text or had alternative text that did not adequately describe the content of the image.
The defendant broadly denied these allegations, claiming that the Whisper Lounge website complied with WCAG 2.0 Level AA success criteria and could be accessed with the NVDA screen reader.
Because Midvale’s claims were largely unsupported and did not directly address Thurston’s specific claims or those of her accessibility expert, however, Judge Jessner concluded that there was no question of fact necessitating a trial and issued her decision on the basis of Thurston’s motion for summary judgment. Plaintiffs rarely win cases outright during the summary judgment stage, as typically a trial is required to prove the allegations in the complaint.
Judge Jessner also rejected Midvale’s defense that the website posted an email address and phone number at which it could be contacted because “the provision of an email or phone number does not provide full and equal employment of Defendant’s website, but rather imposes a burden on the visually impaired to wait for a response via email or call during business hours rather than have access via Defendant’s website as other sighted customers.”
In her order finding against the defendant, Judge Jessner ordered Midvale to bring the Whisper Lounge’s website into compliance with WCAG 2.0 Level AA success criteria. The decision did not provide a time frame under which this must occur, though this may be resolved in a future order.
Judge Jessner also ordered the defendant to pay $4,000 in statutory, though she declined to find that Thurston’s multiple visits to the Whisper Lounge website constituted separate offenses under the Unruh Act, which imposes a statutory minimum of $4,000 in damages “for each and every offense.” Instead, Judge Jessner reasoned that Thurston’s “repeated visits to the same inaccessible website” arose out of the same underlying offense.
Thurston v. Midvale Corp.is not the first case applying the Unruh Act to an inaccessible website. In 2016, a California state court held Colorado Bag and Baggage’s website violated both the ADA and the Unruh Act, and the firm was ordered to make its website accessible and pay $4,000 in damages.
This blog post is for informational purposes only and does not constitute legal advice.