CA Court of Appeal Clarifies that Purely Online Businesses Are Not Covered by the ADA

Written by Susan Kohn Ross, Jonathan Turner and Celia Guzman

In a decision that is expected to curtail the high volume of website accessibility claims, the California Court of Appeal held that (1) purely online businesses are not covered by the Americans with Disabilities Act (“ADA”); and (2) the discriminatory effect of a facially neutral policy or action alone does not satisfy the “intentional discrimination” requirement under the Unruh Act.


Title III of the ADA prohibits discrimination on the basis of disability in the activities of “places of public accommodation.”  In a prior MSK Client Alert, we discussed how this law mandates that places of public accommodation must afford to disabled persons the “full and equal enjoyment” of the related privileges, goods, services, advantages and accommodations as those provided to able-bodied persons, and that business owners servicing the public are responsible for meeting those obligations.  We also addressed the question of whether and when a business that owns, sponsors or operates a website is considered a place of public accommodation, such that the business must make its website reasonably accessible to disabled persons.  (See our prior post on Website Accessibility under the ADA here). 

There continues to be a split in the federal circuits regarding whether websites are considered a “place of public accommodation” for purposes of the ADA.  The First, Second, and Seventh circuits have held that websites are “places of public accommodation” subject to the ADA.  However, the Third, Sixth, Ninth, and Eleventh circuits have held that a website is a “place of public accommodation” for purposes of the ADA if and only if there is a sufficient connection or nexus to a physical place, i.e. a brick and mortar store.

On March 18, 2022, the DOJ issued guidance on website accessibility under the ADA for the very first time.  In doing so, the DOJ reaffirmed its view that when brick and mortar stores and other businesses that clearly fall under the category of a public accommodation (i.e., businesses that operate out of physical facilities, such as retail stores, banks, hotels, hospitals, and food and drink establishments), offer goods or services on the web, those businesses must make their websites reasonably accessible to disabled persons; however, the DOJ did not address whether a purely online business without a nexus to a physical place of business is a “place of public accommodation” subject to the ADA. 

Martinez v. Cot’n Wash, Inc.

On August 1, 2022, in Martinez v. Cot’n Wash, Inc., the California Court of Appeal issued a decision answering that question.  Although the decision is not binding on federal courts interpreting the ADA, it provides a thorough and persuasive analysis for its holding that purely online businesses – websites with no connection to a physical space – are not within the definition of a “place of public accommodation” for purposes of the ADA and consequently Section 51(f) of the Unruh Act.

The unanimous three-judge panel also rejected Martinez’s theory that, even if a purely online business is not a public accommodation under the ADA, the defendant in this case nevertheless is liable for “intentional discrimination” under section 51(b) of the Unruh Act.  In rejecting this claim, the Court clarified that a plaintiff cannot rely on the effects of a facially neutral website alone for purposes of satisfying the “intentional discrimination” requirement, and it rejected the argument that intentional discrimination can be inferred from the fact that Martinez made the online business aware of the discriminatory effects by virtue of a demand letter and that the online business failed to ameliorate these effects. 


The Martinez decision will hopefully put an end to the high volume of website accessibility cases – especially for online only businesses.  However, businesses with both an online and physical presence, i.e. brick and mortar stores with a website, will still be subject to website accessibility claims.  With that said, the Court’s ruling on the “intentional discrimination” requirement for claims under Section 51(b) of the Unruh Act should have a significant impact on these claims as well.

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