DON’T DROP THE BALL ON WEBSITE ACCESSIBILITY

The Rise of ADA Website Lawsuits is Real

By Kathleen E. Finnerty.  FINNERTY LAW OFFICES, INC.

January 2020

Internet shopping was not a daily activity when the Americans With Disabilities Act was passed in 1990 (42 U.S.C.S. Section 12101, et seq.).  Not surprisingly, the Department of Justice did not adopt regulations outlining accessibility for web sites and “apps” then, nor can they be adopted now under President Trump’s ban on new regulations.  So then, what is a business who operates a website obligated to do?

We have previously written about the new spate of lawsuits filed over the last two years by sight impaired individuals claiming that the businesses’ websites violate Title III of the Americans with Disabilities Act (ADA) by not being accessible to them.

The issue of website accessibility has become a hot topic in the ADA world, as I predicted in an article I wrote 10 years ago, after the Ninth Circuit’s decision in United States vs. AMC Entertainment, Inc. 549 F3d. 760 (9^th Cir 2008) and National Federation of the Blind vs. Target Corp.,  452 F. Supp. 2d 946, 953 (N.D. Cal 2006) titled “Does Your Web Site Need Accessible Ramps?”.

 

The Federal Courts Are Divided

Although there is currently a three-way split of authority among federal courts, the ADA is a remedial statute and as such should be construed broadly to implement its fundamental purpose of eliminating discrimination against individuals with disabilities.  (Hason v. Medical Bd. of California (9th Cir. 2002) 279 F.3d 1172; see also Tcherepnin v. Knight (1967) 389 U.S. 332, 336 [19 L.Ed.2d 564, 88 S.Ct. 548] [recognizing the “familiar canon of statutory construction that remedial legislation should be construed broadly to effectuate its purposes”].) The United States Supreme Court has explained the legislative history of the definition of public accommodation clearly indicates the term should be construed liberally. (PGA Tour, Inc. v. Martin (2001) 532 U.S. 661, 676–677 [149 L.Ed.2d 904, 121 S.Ct. 1879].)

The Robles v. Domino’s Pizza, LLC Case in California 

The latest decision on the questions surrounding ADA website accessibility was issued by the Ninth Circuit Court of Appeals in favor of the Plaintiff on January 15, 2019.

In March, 2017, federal District Judge James Otero of the Central District of California dismissed a lawsuit by a blind plaintiff who claimed that he could not order pizza from the Domino’s website because it could not be accessed using his screen reader.  The plaintiff claimed that by having an inaccessible website, Domino’s violated Title III of the ADA and other California laws that prohibit discrimination against individuals with disabilities by public accommodations.

Judge Otero concluded that the ADA does apply to Domino’s website and mobile app, but dismissed the lawsuit before discovery because:  (1) To hold Domino’s in violation of the ADA where there are no legal technical standards for public accommodations websites would be violation of due process; and (2) under the primary jurisdiction doctrine, courts should hold off on deciding cases where enforcement agencies with special expertise should weigh in first.

On appeal, however, the Ninth Circuit issued its ruling in Plaintiff’s favor on January 15, 2019. See Robles v. Domino’s Pizza, LLC (2019) 913 F.3d 898.  Domino’s filed its petition for writ of certiorari in with the U.S. Supreme Court in June 2019 asking the Court to review and overturn the Ninth Circuit’s decision which allowed a website accessibility lawsuit to proceed against Domino’s.  Domino’s styled the question presented as “Whether Title III of the ADA requires a website or mobile phone application that offers goods or services to the public to satisfy discrete accessibility requirements with respect to individuals with disabilities.”  The Supreme Court is presently deciding whether or not to review the case.

Key Points from the Domino’s Pizza Decision

The Ninth Circuit  agreed with the district court that the ADA applies to Domino’s website and app.  In so doing, the court said that the ADA “applies to the services of a place of public accommodation, not services in a place of public accommodation.”

The Ninth Circuit reaffirmed its position that, to be covered by the ADA, a website or mobile app must have a nexus to a physical place of public accommodation. The court stated that this nexus was “critical” to its analysis in the Domino’s case where the “alleged inaccessibility of Domino’s website and app impedes access to the goods and services of its physical pizza franchises – which are places of public accommodation.”  The Ninth Circuit said in a footnote that it was not deciding whether “the ADA covers the websites or apps of a physical place of public accommodation where the inaccessibility does not impede access to the goods and services of a physical location.”

The Ninth Circuit left open the possibility that a 24/7 toll-free phone line could be an alternative means to provide access in lieu of an accessible app or website.  The Court said in a footnote that “the mere presence of a phone number, without discovery on its effectiveness, is insufficient to grant summary judgment in favor of Domino’s.”  This statement suggests that, with discovery on the effectiveness of the phone line, perhaps based on survey data, summary judgment for Domino’s could be a possibility.

The Ninth Circuit did not agree with the district court on the due process point, however, finding that Domino’s has been on notice since 1996 of DOJ’s position that its website and app must provide effective communication.  (Although none of the DOJ documents cited by the court actually mention mobile apps, it seems a logical extension given recent technological advances.)

The Ninth Circuit’s rejection of these due process and primary jurisdiction arguments, which are often mounted by defendants in website accessibility cases, is not entirely surprising. Many district courts have also reached the same conclusion, and the district court’s decision in this case was an outlier.

The Ninth Circuit did not express any opinion about whether Domino’s website or mobile app comply with the ADA.  That issue was to be determined post discovery.

We predict the number of website accessibility lawsuits in California federal courts will increase dramatically in 2019.  While this case was on appeal, plaintiffs largely opted to file their website accessibility cases in California state court but this decision clears the way for more federal filings.

Practical Lessons

Because the Department of Justice has not issued technical requirements for websites and phone apps, but the District Court in Domino’s followed the recommendations in several other courts that where there are no regulations, compliance with best practices for accessibility can be compelled.  As to Website the most current industry best practices as set forth in the Web Content Accessiblity Guidelines 2.0, known as WCAG 2.0, https://www.w3.org/TR/WCAG20.  Most federal agencies use the WCAG 2.) level A and level AA Success Criteria to provide accessibility.  Typically compliance with level AA is required in current Consent Decrees entered into with DOJ.

Further, all businesses that do not have an accessible website should have a 24/7 toll-free telephone number serviced by live customer service agents who can provide access to all of the information and functions on the website. The phone number should be identified on the website and be accessible using a screen reader.  All images on a website should also be coded so that they are accessible using a screen reader.

This is an evolving area of compliance.  Please check back with us soon.

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This article is not intended as legal advice, as every case differs, depending on many factors, including location, timing and specific facts.  Please contact our office at 916.783.1644 or [email protected] for further information.