Website Accessibility Plaintiffs Must Have “Bona Fide Intent” To Use Services

Across the country, companies have been grappling with website accessibility challenges filed by serial plaintiffs alleging the company’s website is not fully accessible to individuals with disabilities. The complaints usually allege that the websites are not accessible via a screen reader by individuals who are blind or low-sighted, based on website coding design. While many plaintiffs legitimately seek website accessibility for websites they intend to use, other plaintiffs are serial plaintiffs compensated to seek or test websites for inaccessibility (sometimes regardless of whether they need such accommodations), including websites that they otherwise would not have encountered or accessed. These suits tend to target small and mid-size businesses, as many large companies have the resources to develop and support sophisticated compliance departments, and have already rendered their website accessible (often after being the target of the first few waves of website accessibility lawsuits). In contrast, smaller businesses that may not have been advised about the legal exposure inaccessible websites present, are often caught unaware and faced with impossible decisions, as remedying the website design may be a significant drain on a small or mid-size company’s already limited resources.

A recent California appellate court decision shows the tides may be turning against serial plaintiffs. In Thurston v. Omni Hotels Mgmt. Corp., No. E074098, 2021 WL 4315811 (Cal. Ct. App. Sept. 23, 2021), the court affirmed the jury verdict to the defendant hotel management corporation where the jury determined that the plaintiff did not possess a “bona fide intent” to use the defendant’s services, which is required to have standing to bring a claim under California’s Unruh Civil Rights Act. The jury found that the plaintiff “never intended to make a hotel reservation or ascertain Omni’s prices and accommodations for the purpose of making a hotel reservation,” and therefore returned a verdict in favor of the defendant Omni Hotels Management Corporation. The Unruh Act that mandates that all Californians – no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, sexual orientation, citizenship, primary language, or immigration status – are entitled to the full and equal accommodations in all business establishments. In addition to the specific provisions of the Unruh Act, the Unruh Act provides that a violation of the Americans with Disabilities Act (ADA) constitutes a violation of the Unruh Act.

Cases alleging website inaccessibility under the ADA and parallel state statutes like California’s Unruh Act are common. Unfortunately, there is no clear mandate from Congress, nor regulations describing exactly which private entities must make their websites accessible and what “accessible” means. Companies are left to follow industry standards and patchwork case law. Given the proliferation of such suits and the cost to resolve them, businesses are prudent to review their websites for accessibility issues and potentially make corrective measures.

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