LOS ANGELES – Los Angeles-based restaurant The Whisper Lounge was found to be in violation of the Americans with Disabilities Act not for what was on-location, but what was off. More directly, the California Second District Court of Appeal, Division Eight recently ruled that the restaurant’s website violates ADA-based compliance regulations and that Title II of the ADA applies to a website.
The case, Thurston v. Midvale Corp., saw Cheryl Thurston, a blind resident of Los Angeles, bringing a complaint against The Whisper Lounge because the restaurant’s website was not compatible with her screen reader.
In a summary judgment, The Whisper Lounge was ordered to bring its site up to Web Content Accessibility Guidelines 2.0 Level AA compliance standards and pay a $4,000 penalty to Thurston.
A notice on the restaurant's website indicates the business has closed. "Thank you for your loyal patronage over the years," the notice states.
While this is not the first complaint of a brick-and-mortar’s digital presence not meeting ADA standards, it is unique because most cases of this nature are taken through the federal courts under an ADA complaint.
When asked if this case helps to clarify the requirements of the digital footprint of brick-and-mortar businesses, Kyla Christoffersen Powell, president and CEO of Civil Justice Association of California said the ADA isn't clear on accessibility for websites.
“The absence of clear rules on website accessibility under the ADA makes compliance a guessing game for businesses, especially small businesses who have fewer resources to navigate complex, ambiguous laws," Christoffersen Powell said. "Without clear rules, plaintiffs’ lawyers are taking advantage and filing shakedown lawsuits. Fair and reasonable standards are needed to promote accessible websites, which benefit consumers with disabilities and businesses alike.”
This case was brought through California state courts as a violation of the state's Unruh Civil Rights Act by violating the ADA. This civil rights code, last amended in 2016, prevents discrimination in the state along a long line of set-criteria.
Associate Justice Maria Stratton, who wrote the deciding September opinion, said that a person who was on a website with the intent of doing business was to be considered “for purpose of standing, equivalent to presenting oneself for services at a brick-and-mortar store.”
Justices Elizabeth Grimes and John Shepard Wiley Jr. concurred in the opinion.
The justices deciding for Thurston in this case had as a guide White v. Square Inc. White, as decided earlier this year by the California Supreme Court, provided a narrower threshold that had to be met in terms of what a plaintiff felt was digital discrimination.