On Monday, October 7, 2019, the US Supreme Court denied the Domino’s Pizza’s request to review the Ninth Circuit’s decision holding that Domino’s must make its website accessible to persons with visual impairments under the Americans with Disabilities Act (ADA). In its prior decision, the Ninth Circuit (i) upheld the District Court’s decision finding that ADA did apply to websites but (ii) reversed the District’s Court’s dismissal of claims against Domino’s, which had been based on the absence of regulatory standards for website accessibility under the ADA. Domino’s petition for certiorari was the first time the Supreme Court had been asked to consider the issue of website accessibility.
Over the past few years, creative plaintiff’s firms representing visually impaired persons have filed a nationwide -- primarily in California, New York, and Florida -- surge of tens of thousands of similar “Website Accessibility Lawsuits” and/or demand letters targeting any category of business, no matter the size or industry. Website Accessibility Lawsuits typically claim that a visually impaired individual (supposed customer or job applicant) was unable to access a company’s website with the aid of screen reader technology because the website in question did not meet certain coding or other standards. The plaintiffs in these lawsuits contend their inability to access the websites using screen readers constitutes discrimination under the ADA and other similar, applicable state statutes.
At best, there is conflicting case law varying from state to state, based on the volume of filed lawsuits that typically nets out in a plaintiff’s favor, with neither the Department of Justice (DOJ) or legislative bodies articulating clear legal or technical standards for compliance. In fact, the DOJ has taken the position that compliance with the Web Content Accessibility Guidelines (WCAG) 2.0 -- which had otherwise achieved a broad consensus as the applicable technical standards for determining website accessibility -- is not determinative of compliance with the ADA.
The Supreme Court’s decision to decline review of the Ninth Court’s finding that the ADA applies to Domino’s website will ensure that the spate of lawsuits filed (and demand letters sent) across the country, to any commercial enterprise with a website, will continue for the foreseeable future. Indeed, some see the Supreme Court’s denial as a statement that the ADA does, in some respect, apply to websites and that website owners’ have obligations thereunder to ensure that their website is accessible to persons with disabilities, including visual impairment.
Given that any business with a website may be targeted by website accessibility claims, we strongly recommend companies take preventative measures, which include adopting a website accessibility policy, reviewing options to scan and updating their website to comply with trending website accessibility and/or lawsuit deterrence standards.