In the latest judicial decision applying the Americans with Disabilities Act to website accessibility—and reportedly the first entering judgment in favor of a plaintiff—a California state court judge ordered the defendant to update its site to make it accessible to the visually impaired and pay damages to the plaintiff.
Edward Davis sued Bag'N Baggage, a Colorado-based luggage company that owns, operates and maintains retail stores in California, alleging violations of the ADA and California's Unruh Civil Rights Act. As a permanently blind individual, he uses a screen reader in order to access the Internet and read website content, the plaintiff explained.
"The Internet has become a significant source of information, a portal and tool for conducting business, and a means for doing everyday activities such as shopping, banking, etc. for both the sighted and blind, and/or visually-impaired persons," Davis wrote in his complaint. "Unless websites are designed to be read by screen reading software, blind persons are unable to fully access websites and the information, products and services contained thereon."
Bag'N Baggage's website presents several barriers to use for the visually impaired, Davis alleged, from linked images missing alternative text to empty links that contain no text to missing form labels. "Due to the inaccessibility of ColoradoBaggage.com, blind and otherwise visually impaired customers who use screen readers cannot effectively browse or shop for Defendant's products online," the plaintiff claimed.
Because the defendant's retail stores are public accommodations within the definition of Title III of the ADA, the acts alleged in the complaint constitute intentional discrimination in violation of the ADA and the Unruh Civil Rights Act, Davis told the court.
The plaintiff moved for summary judgment and Judge Bryan F. Foster granted the motion.
"It is undisputed that plaintiff is disabled within the meaning of the ADA," the court wrote in a minute order. "Plaintiff also has presented sufficient evidence and legal argument to conclude Title III of the ADA applies to plaintiff's use of a website where plaintiff has demonstrated he sought goods and services from a place of public accommodation because he demonstrated a sufficient nexus exists between defendant's retail store and its website that directly affects plaintiff's ability to access goods and services. Plaintiff also presented sufficient evidence that he was denied full and equal enjoyment of the goods, services, privileges, and accommodations offered by defendant because of his disability."
Judge Foster granted Davis' request for injunctive relief, enjoining the defendant from violating both state and federal law and requiring "it to take steps necessary to make ColoradoBaggage.com readily accessible to and usable by visually impaired individuals or to terminate the website."
In addition, the plaintiff was entitled to damages under the Unruh Act of $4,000 because the "undisputed evidence is that Plaintiff's access to the website was prevented by the Defendant at the time the website was designed," the court said. "Repeated attempts at access to the website known by the Plaintiff to be unavailable to him does not constitute additional offenses" requiring additional damages, however.
To read the complaint in Davis v. BMI/BNB Travelware Company, click here.
To read the minute order, click here.
Why it matters: The minute order reflects the majority position of courts across the country that retail websites with a sufficient nexus to a brick and mortar location are covered by Title III of the ADA and therefore must be accessible to the visually impaired. Less clear, but moving in the same direction: whether or not a strictly online business lacking any physical premises is covered by the statute and can be liable for discrimination. At least one court has said the ADA applies to an e-tailer and the Department of Justice has taken the position that e-tailers fall under the purview of the ADA, physical location or not, and is currently promulgating regulations to that effect.