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A giant wooden judge's gavel rests on its platform.

Thanks to the unanimous ruling from White v. Square, slip op. at 16 (Cal. Aug. 12, 2019), a formal agreement or willingness to transact with an online business is no longer a prerequisite for a claimant to allege discriminatory practices or report online access barriers. In fact, any terms or conditions that may hinder or otherwise impede an individual to full and equal access to any offered services can now be subjected to scrutiny under the Unruh Civil Rights Act, a historic piece of California legislation that outlaws discrimination based on diversity characteristics (such as race, ancestry, religion, age, gender, marital status, and sexual orientation) and disabilities.

The ruling is expected to extend the reach of the Unruh Act to online businesses and services, thereby pressuring California-based companies to plan for and also deliver greater levels of inclusivity in the virtual space.

However, it is important to note that these positive changes are little more than a happy coincidence. In the case of White v. Square, the plaintiff Robert White argued that the online financial platform discriminated against him because of his profession as a bankruptcy attorney as its user agreement prevented him from using the service for his practice. Although his first and second complaints were dismissed because he never officially finished signing up, his appeal ultimately triumphed thanks to his argument that intent of use (rather than “a futile gesture”* after the fact) should be enough to grant him standing under the protections of the Unruh Act. And he was right.

The Ripple Effect of White v. Square 

Although the case wasn’t about accessibility at all, the ruling has important ramifications for the civil rights of countless Californian internet users, as is affirmed in their Amicus Brief (“friend of the court” brief) by representatives from Disability Rights Advocates (DRA), the Disability Rights Education & Defense Fund (DREDF), the Civil Rights Education and Enforcement Center (CREEC), Disability Rights California (DRC), the Law Foundation of Silicon Valley, and other non-profit, public interest organizations.

“…equal access to online businesses is critical as technology becomes ever more integral to the nation’s culture and economy. Evolving technology holds great promise for communities that may have difficulty accessing brick-and-mortar establishments, including low-income families, people of color, and people with disabilities. The Unruh Act’s promise of full and equal access must be enforced in the online marketplace or these groups will find themselves without recourse when discriminatory exclusion is virtual.”

Key Takeaways

  • In California, online shops and services are no longer exempt from the same accessibility regulations that brick and mortar stores are already subject to.
  • Full and equal access is vitally important to people who suffer from conditions ranging from disabilities, visual or physical impairments, limited functioning to certain times of the day, and those who require the aid of devices and readers to assist them with website navigation.
  • Although this ruling will only be legally binding in the state of California, it paves the way for similar rulings and legislation to be passed across the United States.

Under the “futile gesture” doctrine, people alleging discrimination do not have to complete a business transaction in the face of policies and procedures that hinder, impede, or prohibit access in order to have standing under the Unruh Civil Rights Act.