Employers already are (or should be) familiar with their obligations not to discriminate against and to reasonably accommodate employees and applicants with disabilities under the Americans with Disabilities Act ("ADA"), which requirements are addressed in Title I of the ADA. But the ADA also imposes additional non-employment obligations on governments and municipalities (Title II) and on private places of public accommodation (Title III). Nearly all private employers are also "private places of public accommodation," as that term includes a wide range of entities such as restaurants, bars, hotels, theaters, stadiums, grocery stores, hospitals, doctors' offices and pharmacies, banks, accountants' and lawyers' offices, retail stores, museums, libraries, zoos, amusement parks, private schools, and day care centers. Not only must those facilities be physically accessible to patrons with disabilities, but for years, courts have debated whether such entities also must make their websites accessible to internet users with various disabilities, such as visual and hearing impairments. Although the attached article, reprinted from Wolters Kluwer's Employment Law Daily, authored by Squire Patton Boggs partners Laura Lawless and Rafael Langer-Osuna, primarily addresses retailers' obligations regarding accessible website design, we recognize that many of our employment clients offer public accommodations and host websites, and thus is a timely reminder of the broad responsibility of businesses to accommodate the disability community.
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On Monday, October 7, 2019, the Supreme Court declined to review a Ninth Circuit decision requiring that the Domino's website be made more accessible to the disabled. Specifically, in Robles v. Domino's Pizza LLC, 913 F.3d 898 (9th Cir. 2019), the Ninth Circuit applied the Americans with Disabilities Act, 42 U.S.C. § 12101 ("ADA") and California's Unruh Civil Rights Act (UCRA), California Civil Code § 51, to reverse a district court order dismissing a complaint seeking to have the Domino's website be made "ADA compliant."
The business community followed the case with interest, as plaintiffs have inundated website owners in recent years with lawsuits alleging that their websites are incompatible with screen-reading software used by blind and mobility-impaired users, and therefore violate the ADA's public accommodation requirements and analogous state and local laws.
The visually impaired plaintiff, Guillermo Robles, filed suit alleging that the screen-reading software he uses to "translate" websites and navigate the internet did not fully work on Domino's website because its coding was not designed in such a way to be compatible with the most frequently-used assistance software. The District Court dismissed the lawsuit, finding that it did not state a claim. Specifically, the District Court agreed with Domino's that the lawsuit must be dismissed because the Department of Justice ("DOJ") had not yet issued long-promised, comprehensive regulations to guide companies as to how to design their websites to effectuate the goals of the ADA. Robles insisted – as most plaintiffs in these cases do – that Domino's needed to redesign its website to comply with industry best standards set forth in the Web Content Accessibility Guidelines (WCAG) 2.0, but Domino's argued that adopting such a standard would violate defendants' due process rights, effectively adopting a standard without a specific regulatory compliance scheme. Alternatively, Domino's argued to the district court that the ADA did not apply to its website at all, but the district court rejected that argument in order to dismiss on primary jurisdiction and due process grounds.
The Ninth Circuit reviewed de novo the district court's interpretation of the ADA, its constitutionality, and the invocation of the primary jurisdiction doctrine. In doing so, the Ninth Circuit concluded that the ADA does apply to the Domino's website and mobile application because the ADA "applies to the services of a place of public accommodation, not services in a place of public accommodation." Robles at 905. The Ninth Circuit then held that the ADA provides sufficient notice to public accommodations as to their obligations and is not so indefinite that it fails to provide comprehensible compliance standards. Robles at 906. In doing so, the Ninth Circuit interpreted Robles' complaint, not as one requiring Domino's to comply with the private WCAG 2.0 guidelines, but rather precluding Domino's from discriminating against Robles by effectively excluding him from the meaningful use of its website. The Ninth Circuit concluded that design compliance with WCAG 2.0 standards could be imposed as an equitable remedy, even if it was not expressly required by law (yet). Robles at 907.
The Ninth Circuit also rejected Domino's argument that it did not know what it was required to do to ensure its website was usable by the disabled public, as "the lack of specific regulations cannot eliminate a statutory obligation." Robles at 909 (citing Fortyune v. City of Lomita, 766 F.3d 1098, 1106 n.13 (9th Cir. 2014) and Gorecki v. Hobby Lobby Stores, Inc., 2017 U.S. Dist. LEXIS 109123, 2017 WL 2957736, at *4 (C.D. Cal. June 15, 2017)). Finally, the Ninth Circuit rejected the district court's prudential deferral of its decision until administrative regulations are adopted, concluding that such "delay is 'needless' because the application of the ADA to the facts of this case are well within the court's competence." Robles at 910.
Businesses were hopeful that the Supreme Court might intervene and reverse the Ninth Circuit's decision, but it declined to do so. Domino's publicly maintains that it will litigate this matter through trial, thereby establishing a more fulsome standard for other businesses.
Yet, as a practical matter, the Supreme Court's refusal to weigh in on the growing trend in website accessibility litigation changes little in the overall legal landscape. It is unlikely to lead to a significant uptick in filings in the Ninth Circuit, as some amici predicted. The Ninth Circuit – along with the Third, Sixth, and Eleventh Circuit – remain less friendly for Plaintiffs because courts in those circuits have limited ADA-website accessibility claims to those against defendants whose websites are connected with, or bear a nexus to, physical retail locations.1 The First, Second, and Seventh Circuits, on the other hand, remain more welcoming fora to Plaintiffs as they do not require that websites be connected to a physical location for ADA compliance to apply.2 Indeed, some district court judges in those circuits now state in their standing orders that early dispositive motion practice on standing grounds is discouraged.
Nonetheless, it is discouraging that the Supreme Court declined to hear the case and stem the rising tide of accessibility lawsuits as the main motivator for these cases is often the attorneys' fees recoverable in the process. Given the Court's unwillingness to step in, it is now more critical than ever for the DOJ to issue comprehensive regulations to guide the industry on accessibility requirements.
Footnotes
1 Ford v. Schering-Plough Corp., 145 F.3d 601, 612-13 1998) ("The plain meaning of Title III is that a public accommodation is a place. . . ".); Peoples v. Discover Financial Services, Inc., 387 2010) ("Our court [takes] the position that the [ADA] is limited to physical accommodations."); Parker v. Metro. Life Ins. Co., 121 F.3d 1006, 1010-11 (6th Cir. 1997) (en banc) ("[A] public accommodation is a physical place and this Court has previously so held."); Weyer v. Twentieth Century Fox Film Corp., 198 (9th Cir. 2000) ("Title III . . . 'public accommodations' . . . actual, physical places where goods or services are open to the public, and places where the public gets those goods or services. . . . [thus a connection with] an actual physical place is required."); Rendon v. Valley Crest Prods., Ltd., 294 F.3d 1279, 1282 (11th Cir. 2002) ("Title III encompasses a claim involving telephonic procedures that, in this case, tend to screen out disabled persons from participation in a competition held in a tangible public accommodation.").
2 Carparts Distrib. Ctr., Inc. v. Auto. Wholesaler's Ass'n of New England, Inc., 37 F.3d 12, 19 (1st Cir. 1994) (suit alleging that insurance policy violated Title III of the ADA not barred because public accommodations are "not so limited" as "to actual physical structures"); Nat'l Ass'n of the Deaf v. Netflix, Inc., 869 F. Supp. 2d 196, 200 (D. Mass. 2012) (suit alleging Title III violation for failure to caption all of Netflix's streaming library could proceed notwithstanding absence of physical structure; expressly finding that a website could be a place of public accommodation); Nat'l Fed. of the Blind v. Scribd Inc., 97 F. Supp. 3d 565, 576 (D. Vt. 2015) (holding Title III applies to website operators whose goods or services are not made available at a physical location open to the public, and that allegations that a website and mobile apps are inaccessible to the blind states a facial claim under the ADA); Andrews v. Blick Art Materials, LLC, 268 F. Supp. 3d 381, 393 (E.D.N.Y. 2017) (finding plaintiff stated a facial claim under the ADA when he was unable to as easily use a website, because of its design inaccessibility, to purchase art supplies); Morgan v. Jt. Admin. Bd., Ret. Plan of Pillsbury Co. & Am. Fed'n of Grain Millers, AFL-CIO-CLC, 268 F.3d 456, 459 (7th Cir. 2001) ("An insurance company can no more refuse to sell a policy to a disabled person over the Internet than a furniture store can refuse to sell furniture to a disabled person who enters the store. The site of the sale is irrelevant to Congress's goal of granting the disabled equal access to sellers of goods and services. What matters is that the good or service be offered to the public."); Doe v. Mut. Of Omaha Ins. Co., 179 F.3d 557, 558 (7th Cir. 1999) (holding that the "core meaning of" the ADA, "plainly enough, is that the owner or operator of a store, hotel, restaurant, dentist's office, travel agency, theater, Web site, or other facility (whether in physical space or in electronic space) that is open to the public cannot exclude disabled persons from entering the facility and, once in, from using the facility in the same way that the nondisabled do").
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