In 2001, I wrote a law review article opining that the “public accommodations” provision of Title III of the Americans with Disabilities Act (ADA) applies to the internet. I argued that public accommodations are not limited to physical structures and concluded that companies doing business with the public on the internet should maintain websites that are accessible to visually impaired individuals or risk violating the ADA. Eighteen years later, litigation involving website accessibility under Title III has skyrocketed, and there are no signs of plaintiffs slowing down.
One such plaintiff is Guillermo Robles, a blind man who uses screen-reading software to navigate the internet. In September 2016, Robles filed a federal lawsuit against Domino’s Pizza (Guillermo Robles v. Domino’s Pizza) claiming Domino’s failed to design, construct, maintain and operate its website and mobile application to be fully accessible to and independently usable by the plaintiff and other blind or visually impaired individuals that rely on screen reading software to navigate the internet, in violation of the ADA and related accessibility laws.
Robles alleged that on at least two occasions, he unsuccessfully attempted to order customized pizza online from a nearby Domino’s store. Robles sought a permanent injunction requiring the defendant to conform its website and mobile application to the Web Content Accessibility Guidelines (WCAG) version 2.0.
In March 2017, U.S. District Court Judge S. James Otero granted Domino’s motion to dismiss, finding that while the ADA does apply to Domino’s website and mobile application, imposing liability on Domino’s for ADA violations would violate its due process rights because the Department of Justice (DOJ) has not formally adopted legal technical standards for website accessibility, and under the primary jurisdiction doctrine, the court should hold off on deciding a case where enforcement agencies with special expertise should first weigh in.
The court found that the issue of web accessibility obligations requires expertise and uniformity in administration and, as such, implementing regulations to render technical assistance is necessary for the court to determine what obligations public accommodations must abide by in order to comply with the ADA. Robles appealed.
On Jan. 15, the Ninth Circuit’s three-judge panel agreed that the ADA does apply to the Domino’s website and mobile application, but held that imposing liability on Domino’s does not violate the company’s due process rights because the company has been on notice since 1990, when the ADA was enacted, that places of public accommodation must provide full and equal access to people with disabilities. The panel further held that since 1996, regulations from the DOJ have made clear that such protections extend to websites.
The Ninth Circuit also held that the district court erred in applying the primary jurisdiction doctrine, noting that since the DOJ withdrew its Advanced Notice of Proposed Rulemaking pertaining to accessibility standards for websites and mobile applications in December 2017, applying the doctrine would needlessly delay the resolution of Robles’ claims, and the application of the ADA to the subject website was well within the court’s purview.
The Ninth Circuit remanded the case back to the district court and stated, “[w]e express no opinion about whether Domino’s website or app comply with the ADA. We leave it to the district court, after discovery, to decide … whether Domino’s website and app provide the blind with effective communication and full and equal enjoyment of its products and services as the ADA mandates.”
The Ninth Circuit’s ruling is notable for several reasons. First, the ruling confirms that in the Ninth Circuit, there must be a nexus between a website or mobile application and a physical store for the ADA to apply.
Second, the Ninth Circuit indicated that in such cases, due process constrains the remedies that may be imposed. The court wrote, “Robles merely argues—and we agree—that the district court can order compliance with WCAG 2.0 as an equitable remedy if, after discovery, the website and app fail to satisfy the ADA.” The court seems to indicate that, while the due process argument was premature at the motion to dismiss stage (i.e. before discovery had been conducted), it may be a viable defense argument at a later time in determining what injunctive relief is appropriate, should an ADA violation be found.
Third, the Ninth Circuit specified that while WCAG 2.0 has not been formally adopted, it is a standard that will satisfy the ADA such that a judge can rely on it when awarding injunctive relief.
Fourth, the Ninth Circuit left open the possibility that the company’s 24/7 toll-free phone number could provide alternative access to visually impaired individuals. Since February 2017 at the latest, the defendant’s website included accessibility banners directing visitors using screen reading software to call a phone number that is staffed by a live representative 24 hours a day, 7 days a week, if needed. The Ninth Circuit found that the mere presence of the phone line, without discovery on its effectiveness, was insufficient to grant summary judgment in favor of Domino’s.
The Ninth Circuit’s decision in Robles makes clear that businesses with brick-and-mortar facilities and an online presence should ensure that their websites are accessible to and usable by visually impaired individuals. While the WCAG 2.0 has not been formally adopted, compliance with these guidelines will increase a business’s chance of ensuring its website and mobile application are accessible.
Jeffrey Ranen is a partner at Lewis Brisbois Bisgaard & Smith and vice-chair of its labor and employment practice. Kelley Fox is an associate in Lewis Brisbois’ labor and employment and ADA compliance and defense practices. Both are based in Los Angeles.