This Week in Accessibility: White v. Square
This case ends the hope of remaining inaccessible for Domino’s or any other organization who wants to do business in California or with Californians
It’s not an accessibility case. White is a bankruptcy lawyer who was attempting to access Square’s internet-based services and was blocked by doing so because Square’s terms and conditions specifically refused to provide Square’s services to bankruptcy-related customers. It is a “standing” case as well, meaning the decision is only about whether or not the plaintiff had the right to sue, not about the facts of the case itself.
Even though it is on a completely unrelated topic, the decision by a unanimous California Supreme Court in White v. Square contains unambiguous language that individuals with disabilities will be able to use in alleging accessibility discrimination in the internet setting under the Unruh Civil Rights Act.
When I teach accessibility, I have a slide titled “The Unruh Act — The ADA on Steroids.” California is known for being a) liberal and b) moving vastly more quickly than the federal government when it comes to human rights. The Unruh Act is living proof of that. The Unruh Act:
- specifically outlaws discrimination based on sex, race, color, religion, ancestry, national origin, age, disability, medical condition, genetic information, marital status, or sexual orientation.
- carries an automatic $4,000 statutory damages award.
- If you have vision loss that is not disabling that requires you to use magnification (i.e. most people with bifocals) you are covered under the Unruh Act under the “medical condition” component. This also covers neurodivergent conditions that might not rise to the level of a disability.
- If you have a more traditionally defined disability (legally blind, deafness, wheelchair user, neurodivergent condition) you are covered under the “disability” component.
- Most importantly, plaintiff’s do not have to prove how they were financially damaged by the discrimination in order to claim the statutory damages.
There are three key pieces of language in White v. Square in one amazing contiguous paragraph:
Part 1 — key language about who can file
When a plaintiff has visited a business’s website with intent to use its services and alleges that the business’s terms and conditions exclude him or her from full and equal access to its services, the plaintiff need not enter into an agreement with the business to establish standing under the Unruh Civil Rights Act.
This is *exactly* what happens with inaccessible websites. People with disabilities visit the website with the intent to use the website operator’s services, and is excluded from doing so due to inaccessibility. The White court further went on to state that:
Part 2— key language about when discrimination occurs
In general, a person suffers discrimination under the Act when the person presents himself or herself to a business with an intent to use its services but encounters an exclusionary policy or practice that prevents him or her from using those services.
Domino’s strongest claim on appeal was that the ADA did not yet have an established brightline test of what constituted an accessible service since the rule adopting WCAG 2.0 Level AA never became final. Under the Unruh act that flat out doesn’t matter — if a person with a disability tries to use a service and is blocked from doing so by an exclusionary practice, THEY HAVE A CLAIM.
Part 3— key language about “no building required.”
In the last part of this paragraph, the White court continues by gutting the claim that almost every accessibility defendant makes, that is, if they don’t have a brick-and-mortar store, accessibility laws don’t apply to them.
We conclude that this rule applies to online businesses and that visiting a website with intent to use its services is, for purposes of standing, equivalent to presenting oneself for services at a brick-and-mortar store.
Unruh Act History
This is not the first time that The Unruh Act has been applied to website accessibility, but this is the first time a ruling has come from the California Supreme Court addressing this issue. In June of 2018, a California state court in Los Angeles held on summary judgment that a restaurant violated the Unruh Act by having a website that was screen reader inaccessible. The Whisper Lounge was ordered to make their website WCAG Level 2.0 AA compliant. The fact that this case was decided on summary judgment is a *big* deal — that means the judge felt they didn’t need to hear any evidentiary facts or experts other than what was in the pleadings (papers filed with the court) to make a decision. That makes these types of cases much cheaper for plaintiffs’ attorneys to file, which means they are more likely TO get filed.
How does the White case apply to Domino’s?
And now to what you opened this article for: more Domino’s analysis. One of three things will happen with Domino’s request that the US Supreme Court take up their case.
- Most likely result — the request for a Supreme Court hearing is denied. Outcome: the 9th Circuit Court of Appeals case goes into full force, Domino’s will be required to make their website accessible
- Next most likely result — The request for a Supreme Court hearing is granted and Domino’s lose. Outcome: Effectively the same result as #1 from Domino’s perspective. This outcome has the added bonus of digital accessibility becoming the law of the land *for EVERYONE* and will not up to whether/if analysis by by individual courts.
- Least likely result — The request for a Supreme Court hearing is granted and Domino’s wins: Outcome: The case will be sent back to the California court. Where the very detailed info from the California Supreme Court from White v. Square will be applied. Domino’s will still lose.
States can always provide more protective law than US Federal Government law. That is one of the reasons why the statutory damages under the Unruh Act are allowed — it is more protective than the US Federal discrimination law.
If Domino’s were smart, they would stop throwing money at a case that they just aren’t going to win under any circumstances. It’s not just the finances, the optics are terrible as well. No one wants to be viewed as kicking the cane out from under a person with a disability, and that is exactly the look Domino’s has created for themselves here.
On a note unrelated to Domino’s, the decision in White v. Square will likely restore California’s place towards the top of the “friendly places to file a accessibility lawsuit.” If you want to do business in California or with Californians, it’s going to have to be non-discriminatory. Otherwise, the Unruh Act will bite you in your corporate rear-end.
