California Supreme Court Issues Unanimous Decision Affirming Full, Equal Access in the Internet Age

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On August 12, 2019, the California Supreme Court issued an expansive opinion in White v. Square, Inc., No. S249248.  The unanimous ruling builds on prior appellate decisions, addresses potential conflicts, and resolves important questions about standing and enforcement of civil rights laws online.

As summarized in the Court’s ruling:

We conclude that a person who visits a business’s website with intent to use its services and encounters terms or conditions that exclude the person from full and equal access to its services has standing under the Unruh Civil Rights Act, with no further requirement that the person enter into an agreement or transaction with the business.

White v. Square, slip op. at 16 (Cal. Aug. 12, 2019).  More background about the case below.  Don’t hesitate to ask if you have additional questions.  We will assist in any way that we can.

Question: How Does “Standing” Analysis Apply in Cyberspace?

Claims under the California Unruh Civil Rights Act, one of the state’s oldest and most important nondiscrimination statutes, guarantees all customers and clients full and equal access to “all businesses of every kind whatsoever.”  See Cal. Civ. Code § 51. The White case involved important “standing” questions, addressing the critical issue of who is entitled to bring legal claims against internet-based services.

Broader Implications of White v. Square Claims

Plaintiff White is a bankruptcy attorney who alleged occupational discrimination by Defendant Square, which prohibited use of its online platform for bankruptcy-related payments.  In today’s decision, the California Supreme Court declined to express a view on “occupational discrimination” and focused instead on people’s ability to bring claims under the Unruh Act for discrimination experienced online, which has implications for all diversity characteristics protected by the Act, including disability.

Full and equal access to websites and other 24/7 electronic venues is particularly important for people who have disabilities that preclude or limit travel, limit functioning to certain times of day, or who require extended or repeated information review.  But the promise of such technologies is rendered almost meaningless if websites are incompatible with screen readers used by people with visual impairments or if they “time out” those with manual dexterity limitations.

Amicus Brief Highlighted Key Implications and Arguments

On February 4, 2019, a coalition of California civil rights, disability rights, and legal services organizations filed an amicus brief that highlights the broader implications.  The brief was co-authored by Disability Rights Advocates (DRA), the Disability Rights Education & Defense Fund (DREDF), and the Impact Fund. A copy of this amicus brief is attached.

Amici asked the California high court to explicitly embrace the long-settled federal “futile gesture” doctrine.  In today’s decision, the Court did just that, citing this federal analysis with approval.  White, slip. op at 9-10.  Under the “futile gesture” doctrine, people alleging discrimination based on a clearly stated policy or a prominent access barrier are not obligated to persist in asking businesses for their rights.  In this instance, Defendant Square’s terms of service, posted on their website, explicitly forbade use of the platform for bankruptcy transactions.  As the White decision describes, the California Legislature has explicitly mandated liberal construction of state civil rights laws. The federal “futile gesture” doctrine has functioned effectively for years throughout the nation.  The White decision’s formal adoption of this doctrine will ensure that California law is at least as protective as federal law.

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