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Unruh Act Claim Requires Bona Fide Intent To Use Services
Cheryl Thurston is blind and uses screen reader technology to access the internet and read website content. Thurston brought an action against Omni Hotels Management Corporation (Omni), alleging that Omni’s website is not fully accessible to the blind and the visually impaired. Specifically, Thurston claimed that Omni’s website contained access barriers (e.g., lack of alternative test, empty links, or redundant links) that denied her full and equal access to the website that deterred her from visiting and determining whether to stay at Omni’s hotels. Thurston alleged that Omni intentionally discriminated against her in violation of California’s Unruh Civil Rights Act (Unruh Act) and Title III of the Americans with Disabilities Act (ADA), which generally require that businesses provide full and equal access to individuals with disabilities.
At trial, the evidence produced showed that Thurston visited Omni’s website on multiple occasions between May 2015 and June 2019 and searched for a hotel room in Palm Springs or San Diego, and encountered accessibility issues. However, Thurston did not attempt to reserve an Onmi hotel using a third-party website or by calling Omni directly as her screen reader did read Onmi’s phone number. Thurston also never looked at other hotel websites and never actually made a hotel reservation on these occasions. Expert testimony also demonstrated that her outdated internet browser, outdated screen reader software and lack of proficiency using a screen reader could have caused the issues Thurston experienced when she tried to access Onmi’s website.
The trial court instructed the jury that in order for Thurston to establish her Unruh Act claim, the evidence had to show that either Thurston attempted to use Omni’s website for the purpose of making a hotel reservation or to learn about Omni’s prices and accommodations to decide whether to make a hotel reservation. The jury found that the evidence did not make this showing, rejected Thurston’s claim, and found in favor of Omni. Thurston appealed, arguing that to prevail on her claim, the evidence need not show that she used Omni’s website for the purpose of making a hotel reservation, and the trial court erred by providing this instruction to the jury.
On appeal, the court noted that while it is unnecessary for Thurston to show she was a client or customer of Omni to prevail on her Unruh Act claim, she did have to show she had a “bona fide intent” to book a room. The court found that the trial court’s jury instruction properly directed the jury to determine whether Thurston had that bona fide intent. Therefore, the court upheld the trial court’s instruction. The court also upheld the jury’s conclusion that Thurston failed to present evidence showing a bona fide intent to book a room.
Thurston v. Omni Hotels Management Corporation (2021) 2021 WL 4315811.
While the public accommodation at issue, in this case, was a hotel, the decision indicates that a similar analysis may apply in other types of public accommodations, and require that an individual bringing an Unruh Act claim show evidence of a bona fide intent to use services or purchase goods.