Domino’s Pizza has filed a petition for a writ of certiorari with the United States Supreme Court asking the Court to weigh in on whether Title III of the Americans With Disabilities Act (ADA) applies to websites. The petition seeks a review of a decision by the US Court of Appeals for the Ninth Circuit reversing the dismissal of a class action brought against the pizza company alleging its website and mobile application are inaccessible to blind and visually impaired individuals in violation of Title III of the ADA. The underlying case, Robles v. Domino's, is one of thousands of website accessibility class actions that have been brought under Title III over the past few years. If granted, the petition could have a far-reaching impact, resolving a circuit split on the application of Title III and providing clarity to countless businesses on their website accessibility obligations under the ADA.
Title III of the ADA, enacted in 1990, prohibits discrimination against the disabled, including the blind and visually impaired, in places of public accommodation:
No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations of any place of public accommodation by any person who owns, leases (or leases to) or operates a place of public accommodation.
42 U.S.C. § 12182(a). Although Title III of the ADA does not provide civil penalties for violations of the act, it does permit private rights of action and allows individuals to bring enforcement actions, seek injunctive relief, and recover costs and attorney’s fees. 42 U.S.C. § 12188.
As originally enacted, the ADA did not expressly include websites as places of “public accommodation,” principally because the internet was in its infancy at the time. Over the past several decades, however, as the internet has become ubiquitous and a seemingly unlimited number of goods and services have been made available online, courts have interpreted places of “public accommodation” to include websites. The interpretations have varied among courts resulting in a circuit split regarding whether a website must have a nexus with a “physical place of public accommodation” to fall within the scope of the ADA. The First, Second and Seventh Circuits have found that websites constitute a place of public accommodation regardless of their connection to a physical location. Conversely, the Third, Sixth and Ninth Circuits have traditionally found that a nexus to a physical location is required.
Despite this circuit split, and the large number of ADA class actions filed in recent years, the Department of Justice (DOJ), the agency responsible for implementation and enforcement of the ADA, has not provided any formal guidance on the application of Title III to websites.
An Advanced Notice of Proposed Rulemaking released in 2010 suggested that the DOJ intended to adopt the Web Accessibility Initiative Web Content Accessibility Guidelines (WCAG) 2.0, private industry standards, as the accessibility technical standard for websites covered by Titles II and III of the ADA.1 The proposed rulemaking, however, was withdrawn on December 26, 2017, and no alternative proposed rules or guidelines have been issued by the DOJ.2
Robles v. Domino's
In Robles, blind individual alleged that Domino’s website and mobile application violated the ADA because they were inaccessible to him and other blind and visually impaired users. CV 16-06599, 2017 WL 1330216 (N.D. Cal. Mar. 20, 2017). Domino’s moved to dismiss the action arguing, among other things, that Title III did not apply to its online offerings, and that the application of Title III would violate its due process rights as the DOJ had not issued guidance on applicable compliance standards. Id.
In granting the motion to dismiss, the district court found that Domino’s website and mobile application are places of public accommodation, but that the application of the ADA to the website and mobile application violated the company’s due process rights in light of the lack of guidance from the DOJ on appropriate technical standards for website ADA compliance. The district court also noted that Domino’s provision of a 1-800 number, displayed on its website and visible via screen reader software, through which blind and visually impaired individuals could obtain assistance accessing their website, may constitute effective communication for purposes of satisfying Domino’s requirements under the ADA. Id.
On appeal, however, the Ninth Circuit reversed and remanded the case to the district court, agreeing that the ADA did apply to Domino’s website and mobile application, but finding that the application of Title III of the ADA did not violate its due process rights because Domino’s had notice of the ADA’s general requirements since 1990 and the DOJ’s position that the ADA applied to websites since at least 1996. The Ninth Circuit further noted that, although the provision of the 1-800 number was not central to the district court’s holding, whether the number satisfied Domino’s accessibility obligations under the ADA could only be determined following discovery on the effectiveness of the number.
On June 13, 2019, Domino’s filed its cert petition, asking the Supreme Court to determine “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 petition highlights the lack of DOJ guidance on the issue, and the divergent positions that courts have taken on if or when Title III applies to websites, resulting in the current circuit split. Domino’s also highlighted the large number of ADA website accessibility class actions recently filed by serial plaintiffs that make the resolution of this issue a pressing concern.
It is unclear whether the Supreme Court will grant Domino’s petition. However, should the Court decide to take the case, a decision could result in greater uniformity in how Title III is applied to websites, and provide much needed clarity to businesses operating in the digital space regarding their accessibility obligations. A decision on the whether the Supreme Court will take up the case is expected in the next few months.
1 Nondiscrimination on the Basis of Disability; Accessibility of Web Information and Services of State and Local Government Entities and Public Accommodations, 75 Fed. Reg. 43460–01, 43460 (July 26, 2010).
2 Nondiscrimination on the Basis of Disability, 82 Fed. Reg. 60932-01 (Dec. 26, 2017).