TheAccessPond.com

I’ve stopped babbling about techno stuff and going back to what I do best– being a legal policy wonk on IT accessibility.  In a previous post, I blogged about the Target suit and promised I’d get back to it.  Well, I still haven’t had a chance to really focus on that, but one point that I think is key to the analysis is the power of the California Unruh Act for web accessibility advocates.

Why?  Because my reading of Unruh is that it gets past the ADA’s complications in defining what constitutes a “place of public accommodation”– the biggest stumbling block in ADA web litigation.  First, a little background…

In order to sue a business under Title III of the ADA, you have to show that you were discriminated against by a “place of public accommodation.”  This is a legal buzzword that means one of twelve broad categories like retail establishments, social service centers, etc.  There aren’t many times that this causes ADA litigants any trouble until one starts getting into places that don’t seem like real “places” anymore.  For instance, if you call a mail order company to buy a pair of shoes and they say, “sorry, we don’t sell shoes to people with disabilities,” there’s pretty blatant discriminatory behavior.  But, where’s the “place” that the discrimination occurred?  Is the telephone a place?  (actually, a good litigant would probably succeed in arguing that the call center with the rude operator was the place of public accommodation, but you get the idea).  But, what about the Internet– it’s really hard to find a “place” here, as the bits of data that make up an inaccessible site can be just about anywhere and might not even be in the United States.  And even if you track down the servers that served up that data, do you really want to be the attorney saying that a computer server discriminated against your client?

Through several briefs, the Department of Justice was fairly successful in ducking this issue, notably in the Hooks v. OKBridge and Rendon v. Valleycrest Productions, two fairly old briefs available on Civil Rights Division’s Appellate Section Website.  I’ve never been fully satisfied by the reasoning of those briefs and I generally find Judge Patel’s reasoning in the Target opinion a bit more convincing (a very good analysis of that opinion can be found at the Out-Law site).  The key point to both the Target decision and the DOJ’s briefs is the idea that the ADA focuses on the goods and services of a place of public accommodation and not in a place of public accommodation.  True enough– that’s the wording of the statute, but it still begs the question of where the “place” is.  In the case of Target, the plaintiffs focused on the stores.  I’ve found this troubling for two reasons.

• First, because Target’s website isn’t service of the store, but a service of the Target Corporation as a whole, a plaintiff then has to make the convuluted argument that it isn’t the website itself that is the discrimination but instead it’s the resultant lack of benefits at the stores that’s created when visitors can’t do things like look up local stores, find special sales, and print out coupons– all things that non-disabled users take for granted when they go to Target’s website.  Apart from the mental headaches that this kind of legal bootstrapping creates, how can an attorney prove that this kind of two-stage discrimination really happened?
• Second (and far worse) is that it completely throws out internet only companies like Amazon.com.  I’ll grant that this is inevitable when suing in the 9th Circuit (which requires that places of public accommodation be physical places).  Maybe, the next ADA website suit should be somewhere else, like the 1st Circuit (hint, hint).

Needless to say, this “place” stuff in ADA Title III creates some nasty legal convolutions.  But, unlike the ADA, the Unruh Act doesn’t seem to have a place requirement.  Instead, it permits suit against any “business establishment” for discriminatory conduct.  Cal Civ Code § 51.  I’m not a California attorney, but my preliminary research suggests that this is a very broad term and includes just about anything (except private clubs) that has any shades of commercialism or business-like conduct.  Also unlike the ADA, the Unruh Act has much more severe damages.  If I can get past the next few weeks and my secret ColdFusion project, I promise to spend more time researching Unruh.

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