On October 7, 2019, United States Supreme Court declined to hear an appeal of a decision by the Ninth Circuit presenting a question of significant importance to business owners engaged in ecommerce: Does Title III of the ADA require 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’s refusal to hear the appeal leaves in place a sweeping decision by the US Court of Appeals for the Ninth Circuit (which covers the states of California, Alaska, Arizona, Hawaii, Idaho, Montana, Nevada, Oregon and Washington) that answered that question in the affirmative, and is likely to spur a renewed, nationwide flood of litigation over website accessibility.
In 2016, California resident Guillermo Robles sued Domino’s Pizza, LLC, asserting that he was unable to order pizza using the screen reader he uses to help him navigate the internet on his computer and phone. Domino’s defended the case by arguing that the ADA, which was enacted long before the advent of the internet, was only applicable to “brick-and-mortar” establishments, not the web. The US District Court for the Central District of California held that the ADA was applicable to Domino’s website and app because those qualified as places of public accommodation under the statute, but nevertheless granted summary judgment for Domino’s by finding that in light of the Department of Justice’s failure to provide meaningful rulemaking guidance on accessibility standards (an issue we have previously discussed here, Domino’s due process rights would be violated by imposition of the WCAG 2.0 accessibility criteria.
On appeal, the Ninth Circuit affirmed the District Court’s holding that Domino’s website and app qualify as places of public accommodation under the ADA and reversed the summary judgment decision, holding that: (a) it would not violate due process for a District Court to order as an equitable remedy, after discovery and trial, compliance with the WCAG 2.0 accessibility standards; and (b) the fact that the DOJ has thus far abdicated its rulemaking responsibilities where website accessibility is concerned is not an impediment to lawsuits seeking to impose liability under the ADA.
While the Supreme Court’s refusal to hear Domino’s appeal of the Ninth Circuit’s decision means that the case will go back to the District Court for a determination of whether Domino’s website and app are sufficiently accessible, it is likely – if not inevitable – that the refusal will have much broader ramifications. This is due to the fact that the Ninth Circuit’s evisceration of a number of the primary defenses to liability under the ADA raised by business owners will remain the law in the Ninth Circuit, and plaintiff’s lawyers elsewhere will inevitably argue that the Ninth Circuit’s decision has effectively become the law of the land. We have previously commented on the trend, apparent for at least two years, of courts requiring websites to comply with the WCAG 2.0 standards, and had advised clients to proactively move in that direction since as early as May 2016. The Supreme Court’s refusal to take up the Domino’s case means that companies desiring to mitigate the risk of ADA litigation should focus renewed efforts on ensuring that their websites – and apps – meet the WCAG 2.0 accessibility standards.