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Revisiting Website Accessibility for California Businesses in Light of Wayfair, Inc.

Not too long ago, we discussed the fact that San Diego and California businesses must ensure that their websites are compliant with the Americans With Disabilities Act (“ADA”), with the Unruh Civil Rights Act (“UCRA”), and with the California Disabled Persons Act (“DPA”). As we discussed in that article — see here — the practical issue is ensuring that your company‚Äôs website is compatible with screen reader software that allows the blind, for example, to access the information listed on your website.

In our earlier discussion, we reviewed how the courts have been struggling with whether the ADA applies to a purely online business or whether some sort of physical presence is necessary. A new US Supreme Court decision might be relevant to the question. In the case of South Dakota v. Wayfair, Inc., Case No. 17-494 (June 21, 2018), in a five-to-four decision, the court reversed an earlier precedent and held that now, no physical presence in a state is needed for that state to require the retailer to collect state sales taxes on transactions. The Wayfair case may add fuel to the argument that the ADA applies even in circumstances in which there is no physical location for the alleged discrimination to take place.

Here is a quick review and discussion.

San Diego Corporate Law: Legal Review and Wayfair, Inc.

The ADA, the UCRA, and the DPA prohibit discrimination in “place[s] of public accommodation.” Under current California law and Ninth Circuit law, websites are not actual physical locations and, as such, are not “places” of public accommodation to which the ADA, the UCRA, and the DPA apply. See, for example, Young v. Facebook, Inc., 790 F.Supp.2d 1110 (N.D.Cal.2011) (dismissing ADA claim against Facebook because it operates only on the internet).

However, if a San Diego business operates from a physical space and uses the internet to “drive traffic,” then the company’s website needs to use the proper software to be compliant with the various anti-discrimination statutes. See, for example, National Federation of the Blind v. Target Corp., 452 F.Supp.2d 946 (N.D.Cal. 2006) (Target stores are physical; website is designed to drive traffic to the physical stores; website must therefore be ADA compliant).

In general, the legal concept of “physical nexus” with respect to taxation dates back to a 1967 US Supreme Court case called National Bellas Hess v. Department of Revenue, 386 U.S. 753 (1967). The new decision in Wayfair overrules National Bellas. Now, for purposes of taxation, no physical presence is needed. In the Wayfair case, the majority of Justices held that the reality of commerce is now substantially a virtual reality. As such, it was appropriate to recognize that reality and overrule long-standing precedent.

The reasoning in the Wayfair case may signal a change in how the federal courts integrate the internet and a business internet presence into various legal obligations. It would not be surprising to see more courts abandon the “physical nexus” or “physical presence” requirement for ADA compliance cases. Some courts have already held as such. See Andrews v. Blick Art Materials, LLC, 268 F. Supp. 3d 381 (US Dist. E.D.N.Y. 2017) (holding that the ADA applies even if there is no nexus to physical stores).

Contact San Diego Corporate Law

For more information, contact Michael Leonard of San Diego Corporate Law. Contact Mr. Leonard via email or call at (858) 483-9200. Mr. Leonard’s law practice is focused on business, transactional, and corporate matters. Mr. Leonard proudly provides legal services to business owners in San Diego and the surrounding communities.

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