Any company doing business on the West Coast must be aware of the Americans With Disabilities Act (ADA) and how it applies to their website. Now, following a flurry (if not frenzy) of cases, the Ninth Circuit Court of Appeals has reversed a California federal court’s ruling that dismissed a claim by a consumer that Domino’s website and mobile application were not fully accessible to blind or visually impaired users who rely on screen-reader software. Robles v. Domino’s Pizza, LLC, No. 17-55504 (9th Cir. Jan. 15, 2019).
In doing so, the Ninth Circuit concluded that the ADA put places of public accommodation on “fair notice” of their obligation to provide accessible websites and apps, at least when these websites and apps are used in conjunction with a physical location.
Background
In Robles, the plaintiff, who is blind, alleged that Domino’s Pizza violated the ADA and California’s Unruh Civil Rights Act by failing to design, construct, maintain and operate its website and mobile application in a way that was fully accessible to him.
Domino’s operates a website and app that allow customers to order pizzas and other products for at-home delivery or in-store pickup, and receive exclusive discounts. The plaintiff claimed that he attempted to order online a customized pizza from a nearby Domino’s, but he was unsuccessful because his screen-reading software could not read Domino’s website or app. The lawsuit requested statutory damages for noncompliance with the ADA, and also requested equitable remedies, seeking a court order requiring the company’s website and mobile app to comply with Web Content Accessibility Guidelines (WCAG) 2.0 — a private industry standard widely adopted by federal agencies in the absence of an express statutory standard.
Lower Court Opinion
The district court held that the ADA’s requirement to provide auxiliary aids and services to make visual materials available to blind individuals applied to Domino’s website and app because these visual materials (i.e., the website and app) were used to order goods from Domino’s physical restaurants.1 The court found, however, that imposing the WCAG 2.0 standards on Domino’s “flew in the face of due process” because the Department of Justice had yet to offer any meaningful regulatory guidance to make clear to entities covered by the ADA what they need to do to make their websites accessible. The district court therefore invoked the “primary jurisdiction” doctrine to dismiss, which allows a court to stay proceedings or dismiss a complaint without prejudice pending the resolution of an issue within the special competence of an administrative agency.
The Ninth Circuit Opinion
The Ninth Circuit agreed with the lower court that the ADA applied to Domino’s website and app. The court noted that the ADA required Domino’s to provide auxiliary aids and services to make its website and app accessible to disabled individuals, even though Domino’s customers primarily accessed the website and app away from the physical restaurant. According to the court, “The statute applies to services of a place of public accommodation, not services in a place of public accommodation.” The court specifically noted that the nexus between the Domino’s website and app and its physical restaurants was critical to the court’s analysis.
The appellate court disagreed with the lower court, however, on the due process issue in finding that the ADA’s standards were clear and provided fair notice to Domino’s. While Domino’s argued that the plaintiff sought to impose liability on Domino’s for failing to comply with the WCAG 2.0, which are private guidelines, the court concluded that the plaintiff did not seek to impose liability for the company’s failure to comply with the WCAG 2.0, but, rather, sought compliance with that standard as a possible equitable remedy.
This leaves both companies and their customers with little guidance as to what constitutes an appropriately accessible website so as to foster early resolution of cases. Compounding this uncertainty, the Ninth Circuit also rejected the district court’s ruling that it was not fair to hold Domino’s liable since the DOJ has yet to issue specific guidelines for website and app accessibility. Rather, the court held that the lack of specific regulations under the ADA did not eliminate the company’s statutory obligation to comply with the ADA. The court stated, “the Constitution only requires that Domino’s receive fair notice of its legal duties, not a blueprint for compliance with its statutory obligations.” Given the lack of specific guidance, however, it is difficult to say Domino’s (or any other company) has “fair notice of its legal duties,” other than a need to comply with generalized ADA guidelines. While the goal of website accessibility is certainly admirable, the lack of clarity is sure to encourage further litigation in this realm.
Finally, the court overturned the district court’s exercise of the primary jurisdiction doctrine, finding that invocation of that doctrine was inappropriate since the DOJ was aware of, but has expressed no interest in, the subject matter of the litigation, and a referral to the agency would significantly postpone a ruling on the case.
Key Takeaways
The Robles ruling makes it clear that places of public accommodation in the Ninth Circuit that use a website and/or app in conjunction with a physical space must ensure that the website and app are accessible to blind individuals. While there continues to be a lack of certainty as to what constitutes “accessible” in this arena, the WCAG 2.0 guidelines are a resource to companies seeking to avoid this type of lawsuit.2
However, it is important to note that the Ninth Circuit did not address websites lacking a nexus to a physical location (as discussed in endnote 1), and expressly refused to opine as to whether the ADA would cover websites or mobile apps of companies “where inaccessibility would not impede access to the goods and services of a physical location.” Thus, it remains to be seen whether companies lacking a physical location are required to ensure that their websites and apps are accessible to blind individuals.
Endnotes
1 The opinion did not address websites that lack a nexus to a physical location. In fact, the Ninth Circuit in Earll v. eBay, Inc. held that the phrase “place of public accommodation” requires “‘some connection between the good or service complained of and an actual physical place.’” This concept was recently confirmed in Martinez v. San Diego Credit Union, where the San Diego Superior Court ruled at the outset of trial in favor of the defendant, finding that the ADA does not apply to websites lacking such a nexus.
2 Notably, WCAG 2.1 guidelines also have been recommended. See https://www.w3.org/TR/WCAG21/.
