As I have noted in prior posts (for example, here), a few plaintiffs’ law firms have launched a wave of lawsuits under the Americans with Disabilities Act (ADA) based on website inaccessibility allegations. In one of the first appellate court decisions on the legal issues these cases present, the Ninth Circuit recently reversed a lower court dismissal of a website and mobile app accessibility lawsuit that had been filed against Domino’s Pizza. The appellate court’s ruling underscores the exposures companies face for these kinds of lawsuits. The Ninth Circuit’s January 15, 2019 opinion in Robles v. Domino’s Pizza can be found here.
Guillermo Robles is legally blind. Robles uses screen-reading software to access the Internet. On two occasions Robles attempted to order a pizza online from Domino’s. He was unable to do so because, he contends, Domino’s failed to design its website and mobile app so his software could read the sites. Robles filed a lawsuit against Domino’s failed to design and operate its website and mobile app to be full accessible as required by the ADA. He sought injunctive relief to compel Domino’s to adopt its sites to private industry accessibility standards (WCAG 2.0).
Domino’s moved for summary judgment, arguing that the ADA did not apply to its website and app, and that, in any event, because the U.S. Department of Justice had not issued applicable accessibility guidelines, applying the ADA as the plaintiff requested would violate its due process rights. Domino’s also invoked the primary jurisdiction doctrine, which permits a court to dismiss a complaint pending resolution of controlling issues by an administrative agency with special competence.
In a March 20, 2017 Order (here), Central District of California Judge S. James Otero granted Domino’s summary judgment motion. Judge Otero agreed with the plaintiff that the ADA’s prohibition of discrimination against disabled persons applied to Domino’s website and app. But he also held that requiring Domino’s to comply with the ADA would violate the company’s due process rights because the DOJ, the agency responsible for developing regulations to enforce the statute, had not yet issued relevant standards regarding website or mobile app accessibility. In view of the long-awaited but not yet issued guidelines from the DOJ, Judge Otero invoked the primary jurisdiction doctrine and dismissed the plaintiff’s complaint. The plaintiff filed an appeal to the Ninth Circuit.
The January 15, 2019 Opinion
In a January 15, 2019 opinion written by Judge John Owens for a unanimous three–judge panel, the Ninth Circuit reversed the district court’ dismissal of the plaintiff’s complaint and remanded the case for further proceedings.
The Ninth Circuit began its analysis by concluding that the ADA’s requirements did apply to Domino’s website and app. The alleged inaccessibility of the website and app “impedes access to good and services of its physical pizza franchises.” In reaching this conclusion, the appellate court noted that customer use the website and app to order pizzas for at-home delivery or in-store pickup. The online resources “are two of the primary (and heavily advertised) means of ordering Domino’s products to be picked up at or delivered from Domino’s restaurants.” This “nexus” between Domino’s website and app and its physical restaurants is “critical to our analysis.” The appellate court noted in a footnote that it “need not decide” if the ADA applies to websites or apps “where the inaccessibility does not impede access to good and services of a physical location.”
The court then turned to Domino’s argument that applying the accessibility standards to the company in the absence of DOJ guidelines would violate the company’s due process rights. The appellate court rejected this argument. The ADA, the court said, “articulates comprehensible standards to which Domino’s conduct must conform.” Since at least 1996, Domino’s “has been on notice that its online offerings must effectively communicate with disable customers.” The constitution “only requires that Domino’s receive fair notice of its legal duties, not a blueprint for compliance with its statutory obligations.”
Moreover, “the possibility that an agency might issue technical standards in the future does not create a due process problem.” The constitution, the court said “does not require that Congress or DOJ spell out exactly how Domino’s should fulfill [its] obligation.” The court speculated that the DoJ’s delay may in fact be intentional to allow companies to have “maximum flexibility” to decide how to go about meeting the ADA’s requirements. The appellate court also rejected Domino’s argument that requiring the company to comply with the WCAG 2.0 standard, in the absence of DoJ guidelines, would violate the company’s due process rights.
Finally the appellate court concluded that the district court erred in invoking the primary jurisdiction doctrine. The district court’s ruling on this issue, the appellate court said, would unduly delay the resolution of an issue the court can decide, in violation of the principles underlying the doctrine.
The appellate court remanded the case to the district court for further proceedings to decide whether the website and app provide the blind with accessibility required by the ADA’s mandates.
As the Blank Rome law firm noted in its January 2019 memo discussing the Ninth Circuit’s decision (here), the appellate court’s ruling in the case suggest that companies “should consider taking steps to remediate their platforms to ensure people with disabilities have equal access to consumer-facing content.”
It is important to note that the Ninth Circuit did not say that the ADA’s accessibility mandates apply to every company’s website or mobile app. Indeed, in a footnote the Court expressly emphasized that it was not reaching the issue whether the ADA applies to websites or apps “where their inaccessibility does not impede access to the goods and services of a physical location.” Indeed the appellate court said that the “nexus” between Domino’s website and apps and its physical restaurants was “critical to our analysis.” Although the court expressly did not reach the issue, the implication is that the ADA’s requirements might not apply or might not require accessibility accommodation in the absence of this “nexus” between the website or app and a company’s physical location.
The court’s emphasis that companies may have flexibility in adapting to the ADA’s requirements also could be helpful in some instances. Given the rapid pace of technological change a flexible approach may be preferable, at least assuming that the accessibility mandates apply in the first place.
In any event, the Ninth Circuit’s ruling that the ADA’s accessibility requirements apply to Domino’s website and app is the latest in a series of rulings that have held companies’ websites must provide accessibility to the blind. Significantly, the Ninth Circuit did not reach the issue of whether or not Domino’s website violates the accessibility requirement but rather it remanded the case to the district court for further proceedings on that issue.
There have been cases in which the proceedings have reached the point where there was an affirmative conclusion reached on the issue of whether or not a specific company’s website violated the accessibility requirements; for example, as discussed here, in June 2017, a federal judge in the Southern District of Florida, following a bench trial, entered a verdict that the website of the Winn-Dixie grocery store chain was inaccessible to a visually impaired person in violation of the ADA.
As I have noted in prior blog posts, there have been quite a number of these kinds of ADA lawsuits filed in recent years. The Ninth Circuit’s ruling in this case highlights the risks that companies may face when it comes to these kinds of website and mobile app accessibility issues. In its memo about the case to which I linked above, the Blank Rome law firm emphasized the Ninth Circuit’s decision’s practical implications: “While the Robles decision does not specifically require every website and app to comply with WCAG 2.0, from a practical standpoint, any business with a website and/or an app should perform audits to ensure its websites and apps are accessible to screen reader software and devices used by blind and visually impaired individuals and are as compliant as possible with the WCAG 2.0.”
In that regard, it is worth noting that the Judge in Winn-Dixie case noted above, in shaping relief in the case, imposed an injunction adopting the WCAG 2.0 guidelines. As one commentator noted at the time, the Judge’s use of the guidelines “further points to the WCAG 2.0 as the de facto standard for website accessibility.”
These kinds of cases could represent a substantial litigation exposure for companies involved, as well as for their EPL insurers. The possibility of this type of lawsuit includes not only the risk of damages awards but also includes the costs of defense, as well as the possibility of an award of the claimants’ attorneys’ fees.