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Accessibility Lawsuits California’s Unruh Act Face Hurdles

By John DiGiacomo

New lawsuits under California’s Unruh Act may face hurdles in light of a recent California Court of Appeals ruling, which requires a bona fide interest to use the website that is the subject matter of the lawsuit. In the matter of Thurston v. Omni Hotels Management Corp., the California Court of Appeals held that plaintiffs asserting claims that websites are inaccessible under the Unruh Act must show that they have a bona fide interest to procure the goods or services offered at the website.

Thurston sued Omni Hotels claiming that their website was not coded correctly to fully allow access for a blind person using screen reader text-to-speech programs, in violation of CA’s Unruh and the ADA. Thurston went to Omni’s website to make a hotel reservation/obtain info about prices and accommodations, and encountered impediments caused by the website’s poor coding for screen reader programs. However, at no point did Thurston attempt to contact Omni via e-mail or phone (both of which she was able to access) or attempt to use a third-party service like Expedia. She never actually made any reservation with Omni before initiating the suit. The jury was instructed to prove “that Ms. Thurston attempted to use Omni’s website for the purpose of making a hotel reservation (or to ascertain Omni’s prices and accommodations for the purpose of considering whether to make a hotel reservation)”. The jury was unconvinced by Thurston, and a judgment was entered in favor of Omni. Thurston appealed, contending that the trial court erred in instructing the jury that her claim requires a finding that she “intended” to book a reservation.

The Appeals Court found that for purposes of standing, the Unruh Act requires the plaintiff to allege that they visited the business’s website with intent to make use of the business’s service and encountered discriminatory impediments, even if they then leave the website without entering into an agreement with the business. But beyond the pleading stage, a plaintiff must actually “present sufficient evidence to overcome the online defendant’s argument that he or she ‘did not actually possess a bona fide intent to sign up for or use its service.’” The court relied on previous CA Supreme Court rulings on website-based Unruh/ADA claims. Thurston was represented by Pacific Trial Attorneys, a firm that commonly represents plaintiffs who allege that they have visited websites that were inaccessible.

If you are facing a website accessibility claim either under the Unruh Act or the ADA, contact the attorneys at Revision Legal today for a review of your case.

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