How the White v. Square Decision Affects Web Accessibility

September 20, 2019 BY JACLYN LEDUC
Updated: June 1, 2021

There’s a growing list of cases across the U.S. that have set precedent for federal web accessibility litigation, and California is now part of that list. A decision by the California Supreme Court in the case of White v. Square may affect web accessibility in the State of California, and could perhaps influence future web accessibility cases across the U.S.

In 2017, a total of 814 web accessibility lawsuits were filed under the Americans with Disabilities Act (ADA). The following year, the number of cases filed totaled 2,285. That’s a 181% increase in web accessibility lawsuits in just one year.

There’s a clear pattern showing that web accessibility is coming to the forefront. However, there’s confusion surrounding federal requirements for web accessibility. Currently, there are no legal standards for web accessibility from the Department of Justice. Yet, that doesn’t mean that online businesses won’t be held accountable.

White v. Square, Inc.

The plaintiff, Robert White, is a bankruptcy lawyer who wanted to use Square for his business. Square, Inc. is a financial services, merchant services aggregator, and mobile payment company based in San Francisco, California. When White was reading Square’s terms of services, he stumbled upon a roadblock: Square, Inc. prohibits the use of its platform to accept payments related to certain businesses, including bankruptcy-related payments. White then exited Square’s site without accepting the terms of services since they were discriminatory toward him and his type of business. Therefore, there was no formal agreement between White and Square.

White went on to pursue a claim in Federal district court that Square’s terms of services discriminated against his occupation, which violates California’s state civil rights law, the Unruh Civil Rights Act. The Federal district court initially dismissed this claim stating that White did not have “standing” to sue Square: In the eyes of the court, White could not have experienced any damages since he never entered into a formal agreement with Square.

However, on appeal, the Ninth Circuit raised a new question that the California Supreme Court had the opportunity to answer: Can discrimination barring “full and equal access” to service still occur without a formal agreement or exchange between an online business and its users?

 These Key Cases are Helping Shape the Web Accessibility Litigation Landscape  ➡️
While the California Supreme Court weighed this question, a coalition of disability rights activists filed an amicus brief, urging the supreme court “to recognize that turning users away through discriminatory terms of service or other actions is illegal discrimination and that users who are deterred by discriminatory terms should be able to bring legal claims in court.” An amicus brief is a legal document filed in appellate courts by non-litigants with a strong interest in the subject matter.

The amicus brief also requested that the California Supreme Court formally adopt the “futile gesture” doctrine, which federal courts have long referenced in discrimination cases. 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. Disability rights activists believe that if California adopts the “futile gesture” doctrine it will help rid of discrimination in places of accommodation within California, including online spaces.

The Decision

On August 12, 2019, the California Supreme Court came to a unanimous decision concluding 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 to bring a legal claim under the Unruh Civil Rights Act, with no further requirement that the person enters into an agreement or transaction with the business.”

In other words, the court formally adopted the “futile gesture” doctrine and held that a person who stumbles upon discriminatory terms and conditions on a website may have protection under the Unruh Act even if they never entered a formal agreement with the business.

What This Means for Web Accessibility in California

The conclusion held by the California Supreme Court in the case of White v. Square, Inc. has potential implications regarding web accessibility. Although this particular case did not have to do with accessibility, it set a precedent that civil rights laws can be enforced in online spaces for companies based or doing business in California. There are over 4,000 eCommerce companies based in California which could be affected by this decision.

In the case of White v. Square, White claimed a violation of California’s Unruh Civil Rights Act. While the California Supreme Court did not rule on the merits of White’s claims, this case helps resolve important questions and addresses potential conflicts about standing and enforcement of civil rights law online. For instance, if a person who is blind comes across an eCommerce site that is not screenreader friendly, that person may have standing to file a discrimination claim under the Unruh Civil Rights Act without having to show that they attempted to make a transaction.

Though it may not have been in the way you expect, the White v. Square, Inc. case and decision set precedent for the application of federal accessibility laws to the web in the state of California.


Learn more about web accessibility lawsuits

This blog post is written for educational and general information purposes only and does not constitute specific legal advice. This blog should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.

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