October 17, 2019
Lawsuits alleging business websites and mobile applications have violated the Americans with Disabilities Act (“ADA”) are expected to rise sharply in the wake of the United States Supreme Court’s recent decision to deny Domino’s Pizza’s (“Domino’s”) petition for a writ of certiorari. Domino’s had sought a review of the Ninth Circuit Court of Appeal’s decision in Robles v. Domino’s Pizza LLC, which held: (1) Title III of the ADA could be applied to websites and mobile applications with a nexus to a physical place of public accommodation; and (2) the imposition of liability on businesses for not having an accessible website did not violate their due process rights, even in the absence of Department of Justice regulations governing same.
Robles v. Domino’s Pizza LLC centered around a lawsuit filed in September 2016 in the Central District of California which alleged the Domino’s website contained barriers to accessibility for blind individuals or individuals with limited vision. Plaintiff Robles sought, in part, a permanent injunction requiring Domino’s to comply with the Web Content Accessibility Guidelines (“WCAG”) 2.0.
Although the text of the ADA is silent on the specific issue of website accessibility, courts across the country have interpreted the statute as requiring places of “public accommodation,” a term that includes retail businesses and restaurants, to make their websites accessible to the disabled.
In March 2017, the California District Court dismissed the Robles case without prejudice based upon California’s primary jurisdiction doctrine which allows courts to stay or dismiss lawsuits pending the resolution of an issue by a government agency. The Court held that although Title III of the ADA applied to internet websites, allowing the case to proceed in the absence of clear regulation and technical assistance from the Department of Justice would violate Domino’s due process rights.
In a unanimous decision, the Ninth Circuit reversed the District Court’s ruling. In doing so, the Court held that Title III of the ADA applies to websites and mobile applications. It held further that the lack of official web accessibility regulations does not violate due process and the primary jurisdiction doctrine does not apply. The Ninth Circuit did not express an opinion as to whether Domino’s website or mobile application complied with the ADA.
Businesses had hoped the Supreme Court would take up the matter to stem the tidal wave of lawsuits which have been commenced against public accommodations. Domino’s and other businesses argued the Ninth Circuit’s ruling stretched the definition of public accommodation “too far by deciding that websites and mobile applications must be judged as public accommodations rather than just considered as one of many ways in which a consumer might access a retailer’s offerings”. Having declined to review the case, the Ninth Circuit’s ruling will stand and the matter will be remanded to the District Court for trial on the merits.
For businesses, the Supreme Court’s declination decision ensures the wave of website accessibility lawsuits will continue until a different federal circuit court reaches a contrary opinion which may cause the Supreme Court to resolve a split amongst the circuits.
It also opens a new front for plaintiffs to sue. In making clear that Title III of the ADA applies to mobile applications, businesses should expect plaintiffs to begin bringing app-centric cases in addition to the current website accessibility suits.
In the meantime, it is unlikely the DOJ will provide any further guidance on the issue. In 2010, the DOJ announced it was considering proposing web accessibility regulations. However, none were ever issued and its Notice of Proposed Rule Making was rescinded in 2017. It is also unlikely Congress will take any legislative action on this issue during the current term.
Businesses deemed to be places of accommodation such as retailers, restaurants, or hotels with public-facing websites should assume their sites are subject to Title III of the ADA. These entities must take steps to ensure their websites are accessible and compliant with commonly accepted standards of accessibility, such as WCAG 2.0 or 2.1. Public accommodations should seek legal counsel for assistance with accessibility policies and immediately secure legal representation in the event they are served with a demand letter or are sued pertaining to digital accessibility.
For more information on this topic, please contact MKC&I’s Anthony Nwaneri at (212) 509-3456 or at anwaneri@mcgivneyandkluger.com.