Federal courts in the Ninth Circuit follow a so-called nexus standard in web accessibility cases. Using recent litigation in California, this presentation examines what that means and why the uncertainty in conflicting decisions only heightens the risk exposure for organizations.

1. 1
California Case Study
Ken Nakata
Converge Accessibility LLC
Why You Should Want to Avoid Getting Sued for Web Accessibility

2. 2
Web Accessibility Litigation is a
Mess
Ken Nakata
Converge Accessibility LLC
…So You Should Avoid Getting Sued

3. 3
Ken Nakata
Principal, Converge Accessibility LLC
12 years as a Senior Trial Attorney with the U.S. Department of Justice
• Helped shape the government’s policies for the Americans with
Disabilities Act and Section 508 of the Rehabilitation Act
• Helps organizations manage the change towards accessibility in all
aspects
• Crafts policies, develops stakeholder ownership, and forges
awareness and commitment to the legal and business case
supporting accessibility

4. 4
Overview of Presentation
We’ll be covering…
• An overview of ADA and the ”nexus” requirement.
• Developments in California
• Updates on New York and Florida (new!!)
• Update on California and the Unruh Act (new!!)
• Upcoming DOJ Title II web accessibility regulation (new!!)
• How to avoid getting into web accessibility problems

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5
Quick Overview of Accessibility
Laws and the “Nexus”
Requirement

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Types of Discrimination Under the ADA
Apart from obvious forms of discrimination, the ADA also prohibit
other things like…
• Providing different opportunities for people with disabilities that are
not equal to those available to others (§ 36.202(b))
• Eligibility criteria or screening processes that tend to screen out
people with disabilities ((§ 36.301(b))
• Failing to provide appropriate auxiliary aids and services where
necessary for effective communication((§ 36.303(c))

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“Place of Public Accommodation”

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ADA Title III– Where Your Lawsuit Starts Matters
• Whether a website is a ”place” of
public accommodation has created
a “split in the circuits”
• Nexus approach followed in 3rd,
6th, 9th, and 11th Circuits.
• No nexus required in 1st, 7th, and
possibly even 4th Circuits.
• 2nd Circuit started with nexus
approach but is internally split.

9. 9
Unruh and Disabled Persons Act (California)
Compared to ADA…
• Broader Coverage (all business
establishments)
• ADA violations are automatically
Unruh violations
• Much bigger damages Remember
NFB v. Target Corporation and $6
million settlement.

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10
Problems Applying the Nexus
Standard

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Nexus Problems in Florida
• Nexus cases start with Rendon v.
Valleycrest Productions, 294 F. 3d 1279
(11th Cir. 2002).
• Later split between:
• Cases that looked for general
discrimination
• Cases that focused only on screening
out people with disabilities

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Nexus Problems in Florida (Continued)
• Web accessibility cases initially looked for
any website feature that denied equal
opportunity for people with disabilities.
• 11th Circuit opinion in Winn-Dixie
restricted web accessibility cases strictly.
• After Winn-Dixie opinion was vacated,
11th Circuit APPEARS to be more liberal
again.

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Nexus Problems in California
• Langer v. Oval Motor Sports, Inc.,
2022 U.S. Dist. LEXIS 99575 (N.D.
Cal. 2022).
• Erasmus v. Andrea Tse M.D. Inc.,
2022 U.S. Dist. LEXIS 107569
(E.D. Cal. 2022).
• Erasmus v. Dunlop, 2022 U.S.
Dist. LEXIS 127321 (E.D. Cal.
2022)

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Quick Tangent: California & Online-Only Companies
• Martinez v. Cot’n Wash, Inc., 2022
Cal. App. LEXIS 673 (Cal. Ct. App.
2022).
• Suing an online-only company
under Unruh requires showing
intentional discrimination.
• Likely includes deliberate
indifference.

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Nexus Problems in New York
• Winegard v. Newsday LLC, 2021
U.S. Dist. LEXIS 153995; 2021 WL
3617522 (E.D.N.Y. 2021).
• Tavarez v. Moo Organic
Chocolates, LLC, 2022 U.S. Dist.
LEXIS 154249 (S.D.N.Y. 2022)

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Summary of the Nexus Problem
• The nexus test should be abolished.
• But if the nexus standard is kept, it should adjust based on the
type of discrimination alleged to have taken place.
• If the complaint alleges that the website is a screening
process, then it makes sense to ask if the website “impeded
access” for people with disabilities.
• On the other hand, if the complaint alleges that some
opportunities were denied because of barriers on a website,
then it makes sense to ask if the website “facilitated access”
for people with disabilities

17. 17
New Title II Web Accessibility Regulations Coming
• Background reading from ADA.gov:
• Accessibility of State and Local
Government Websites to People with
Disabilities (2003)
• Guidance on Web Accessibility and the
ADA (2022)
• New regulation announced on July 22 by
OMB.

18. 18
Suggestions for Avoiding Web Accessibility Problems
• Start with a manual audit of your website.
• Create a solid accessibility statement that
includes an alternate means of accessing
your goods and services (remember
effective communication)

19. 19
Summary of Presentation
• An overview of ADA and the ”nexus” requirement.
• Developments in California
• Updates on New York and Florida
• Update on California and the Unruh Act
• Upcoming DOJ Title II web accessibility regulation
• How to avoid getting into web accessibility problems

20. 20
Thank You!!
Ken Nakata
Principal
Converge Accessibility LLC