United States: Supreme Court Turns Down Appeal On The Americans With Disabilities Act's Applicability To Websites, Potentially Leaving Businesses Open To Suit

Last Updated: November 5 2019
Article by Christopher A. Paniewski and Brian Willen

On October 7, 2019, the Supreme Court rejected an appeal from Domino's Pizza (Domino's) concerning whether Domino's website and mobile app must comply with federal disabilities laws.

Domino's offers a website and mobile app through which its customers are able to order pizzas. Guillermo Robles (Robles) is visually impaired and accesses the internet through the use of screen-reading software that speaks the information that appears on websites. Robles attempted multiple times to order a pizza through the website and the mobile app, but the screen reading software was unable to operate as intended. Subsequently, Robles files suit alleging that Domino's Pizza failed to design, construct, maintain, and operate its website and mobile app to be fully accessible to him. 1 The District Court found that while the Americans with Disabilities Act (ADA) applied to Domino's, Domino's did not have fair notice that the website and the mobile app needed to comply with the ADA. The court dismissed the case to await further guidance from the Department of Justice (DOJ) regarding the specifications that Domino's' website and mobile app must meet in order to comply with the ADA. 2

Robles appealed, and the Ninth Circuit, in its decision on January 15, 2019, reversed and remanded, holding that the District Court did not need to await DOJ guidance, 3 and that the American Disabilities Act applies to websites and mobile apps of a business where inaccessibility impedes access to goods and services of a physical location. 4 The Supreme Court rejected Domino's appeal of this ruling.

Applicability of the ADA to a Business' Website and Mobile Applications

Generally, the ADA applies to businesses that would be considered "public accommodations" under the statute. A list of the types of business that would likely be considered a public accommodation is available here. 5 At the same time, the ADA exempts businesses from complying with the ADA if compliance would "fundamentally alter the nature of the good, service, facility, privilege, advantage or accommodation being offered, or would result in undue burden." 6

Courts are split on whether the obligations imposed by the ADA are limited to the physical aspects of a business or whether they extend to a business' website and mobile apps. For years, the DOJ has argued in briefs that the statute applies to a business' websites and mobile apps, relying on the theory that "Title III applies to discrimination in the goods and services 'of' a place of public accommodation, rather than being limited to those goods and services provided 'at' or 'in' a place of public accommodation." 7 At the same time, however, the DOJ has refrained from using its rulemaking authority under to ADA to issue regulations adopting that interpretation and explaining exactly what standards apply to websites and/or mobile apps when it comes to accommodating disabled users.

In the absence of such regulations, courts are divided about how to apply the statute to websites. While some courts have held that any website or mobile app, even those provided for the purpose of accessing a purely online service is subject to the ADA, 8 other courts hold that the ADA applies to non-physical spaces, only if there is a "substantial nexus" to a physical space. 9 Courts who follow this view require that for a "substantial nexus" to exist, there must be "some connection between the good or service complained of and an actual physical space." 10 In Domino's, the Ninth Circuit applied this substantial nexus test, holding that "the ADA applies to Domino's website and app, which connect customers to the goods and services of Domino's physical restaurants." 11

Best Practices

While courts disagree on when the ADA extends to a business' website or apps, in certain instances violations can result in a fine of up to $75,000 for the first violation, and up to $150,000 for any subsequent violation. 12 In addition, failure to comply with the ADA may mean that a business is concurrently in violation of state statutes, such as California's Unruh Civil Rights Act, 13 which can result in a statutory minimum penalty of $4,000 for each offense. 14

Although what constitutes compliance with the ADA has yet to be settled, courts have often looked to the Web Content Accessibility Guidelines 2.0 (WCAG) 15 at the AA level for guidance. 16 Additionally, the United States Access-Board in 2017 updated accessibility requirements for certain government websites to require them to meet the WCAG 2.0 standards at the A and AA level. 17 Given the government's own adoption of this standard and the fact that courts have looked to WCAG 2.0 AA, WSGR recommends that businesses aim to meet these standards with respect to their online presence and consider these standards as part of product design and development, regardless of whether or not a business' website or mobile app meets the substantial nexus test.

The following are guidelines intended to help focus businesses' efforts towards creating an ADA compliant website or mobile app. 18

Perceivable

Information and user interface components must be presentable to all users in ways they can perceive. Consider adding functionality to allow text to be re-sizeable up to 200 percent, or text alternatives, such as speech, symbols or simpler language, and providing closed captioning, audio descriptions, or text transcripts for time-based content. Additionally, the content should be presented in a way that makes it easy for users to distinguish foreground content from background content.

Operable

Websites and mobile apps should be operable via different methods and means. There should be mechanisms in place to help users navigate, find content, and determine where they are. Users should be able to fully operate the website with only the keyboard. Additionally, design the website or mobile app to be compatible with various non-standard input devices, such as joysticks or voice recognition technology, and consider supporting shortcuts or macros for frequently used features. Do not design content in a way that is known to cause seizures or other physical reactions.

If there are any time-based elements, the content must include the ability to pause or stop the content. If the website or mobile app has timed sessions, the website or mobile app must provide sufficient time for users to read or use the content, and in the event the session times out, the user must be able to continue activity without loss of data after re-authenticating.

Understandable

In addition to understanding the content, users must be able to easily operate the website. The website operation should be consistent and predictable, and organized in a way that makes sense when navigated with assistance-providing technology such as a screen reader. Consider providing a sitemap that makes navigation easy and input assistance features such as automatically filling out forms to help users avoid and correct mistakes.

Robust

Finally, the website or mobile app should be compatible with the various assistive technologies currently available, and continue to remain compatible with new assistive technologies. Consider providing a contact number or help line for users who encounter difficulty.

The above are just a few guidelines for implementing an ADA compliant website or mobile app. Businesses should familiarize themselves with the ADA statute and the WCAG guidelines, and make any necessary changes to their websites or mobile apps.

Footnotes

1. See Robles v. Domino's Pizza, LLC, 913 F.3d 898, 902 (9th Cir. 2019)

2. Id. at 903-04.

3. Id. at 907-09.

4. Id. at 905.

5. 42 U.S.C. §12181(7)

6. 42 U.S.C. §12182(b)(2)(A)(iii); see also 28 C.F.R. §36.303(a)

7. See, e.g., Statement of Interest of the United States, Gil v. Winn Dixie Stores, Inc., 242 F. Supp. 3d 1315 (S.D. Fla. 2017), available at https://www.ada.gov/briefs/winn_dixie_soi.pdf, at 5, citing 42 U.S.C. §12182(a) and 28 C.F.R. §36.201(a).

8. See, e.g., Nat'l Ass'n of the Deaf v. Netflix, Inc., 869 F. Supp. 2d 196, 200 (D. Mass. 2012), citing the First Circuit's decision in Carparts Distrib. Ctr. v. Auto. Wholesaler's Assoc., 37 F.3d 12, 19 (1st Cir. 1994), stating that placed of public accommodations are not limited to physical structures; but see Cullen v. Netflix, Inc., 880 F. Supp. 2d 1017, 1023 (N.D. Cal. 2012), stating that "the ADA can only apply to a website when there is a nexus between the challenged conduct and defendant's physical space."

9. See, e.g., Robles v. Yum! Brands, Inc., 2018 WL 566781, at *4 (C.D. Cal. Jan. 24, 2018); Rios v. N.Y. & Co., Inc., 2017 WL 5564530, at *3 (C.D. Cal. Nov. 16, 2017); Reed v. CVS Pharmacy, Inc., 2017 WL 4457508, at *3 (C.D. Cal. Oct. 3, 2017).

10. Id.

11. Robles, 913 F.3d 898 at 905-06.

12. See 42 U.S.C. §12188(b)(2)(C) and 28 C.F.R. 36.504(a)(3), as adjusted by 79 F.R. 17434-36.

13. See Lentini v. Cal. Ctr. for the Arts, 370 F.3d 837, 847 (9th Cir. Cal. 2004); see also Cal. Civ. Code §51(f)

14. See Cal. Civ. Code § 52(a); Munson v. Del Taco, Inc. (2009) 46 Cal.4th 661, 667

15. The WCAG 2.0 standards may be found here. The WCAG standards are promulgated by the World Wide Web Consortium as a part of its Web Accessibility Initiative. The WCAG standards were updated to version 2.1 in mid-2018, available here.

16. See Robles, 2018 WL 566781, at *5 (C.D. Cal. Jan. 24, 2018), stating that whether [the defendant] must comply with the WCAG guidelines is a question of remedy, not liability; see e.g., Gil v. Winn-Dixie Stores, Inc., 257 F. Supp. 3d 1340, 1351 (S.D. Fla. 2017), where the court provided injunctive relief by requiring defendant to make its website WCAG 2.0 AA compliant, and Hindel v. Husted, 2017 WL 432839, at *7 (S.D. Ohio Feb. 1, 2017) (same); see also, Andrews v. Blick Art Materials, LLC, 286 F. Supp. 3d 365, 370 (E.D.N.Y. 2017), determining that the WCAG 2.0 at the AA level are an appropriate standard to judge whether one is in compliance with the ADA.

17. See 36 C.F.R. § Pt. 1194, App. A

18. More detailed guidelines provided by W3C, available here.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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