ADA compliance standard for websites remains unclear

Two recent circuit court decisions have found that the websites and mobile applications of places of public accommodation are subject to the Americans for Disability Act and must be accessible to people with disabilities. However, these decisions, from the 9th and 11th U.S. Circuit Courts of Appeals, have not decided any specific standard that businesses must follow. Despite being requested to clarify the technical standards for accessibility, the Department of Justice has so far declined to do so. In the wake of these court decisions, businesses must be prepared to take some steps to ensure that their websites are accessible, despite clear agency guidance.

The ADA does not specifically mention that websites or mobile applications need to be accessible. The interpretation of the ADA to require website compatibility has stemmed from Section 36.303 of the ADA Title III regulations, which covers Auxiliary Aids. The regulation states: "A public accommodation shall take those steps that may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the public accommodation can demonstrate that taking those steps would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations being offered or would result in an undue burden, i.e., significant difficulty or expense."

Web Content Accessibility Guidelines published by the Wide Web Consortium focus on how to make internet content more accessible to people with disabilities and are considered the international standard for accessibility. These guidelines have three levels: A, AA and AAA, with A-level guidelines being the easiest to follow, and AAA-level guidelines being more expensive and more involved. In 2017, the federal government adopted the "WCAG 2.0 standard" and required federal agencies to have their websites comply by January 2018.

The DOJ is the federal agency tasked with interpreting the ADA and issuing guidelines for compliance. In June 2003, the DOJ issued guidance on the accessibility of state and local government websites to people with disabilities. In 2010, the agency issued a notice that it was considering guidelines "to establish requirements for making the goods, services, facilities, privileges, accommodations, or advantages offered by public accommodations via the Internet." The DOJ stated that although the internet did not exist when the ADA was first passed, it believed that Title III "reaches the Web sites of entities that provide goods or services that fall within the 12 categories of 'public accommodations,' as defined by the statute and regulations." However, the DOJ did not actually issue any rules or guidelines on website accessibility.

On July 31, 2018, in Haynes v. Dunkin' Donuts LLP et al., 18-10373, the 11th Circuit ruled that restaurant websites were covered by the ADA and needed to be accessible to disabled patrons. A blind plaintiff had sued Dunkin' Donuts in Florida, claiming that the company violated Title III of the ADA by not maintaining a website compatible with screen reading software. The district court dismissed the case, but the 11th Circuit panel reversed the lower court in a unanimous opinion. The court held "the website is a service that facilitates the use of Dunkin' Donuts shops which are places of public accommodation. And the ADA is clear that whatever goods and services Dunkin' Donuts offers as a part of its place of public accommodation, it cannot discriminate against people on the basis of a disability, even if those goods and services are intangible."

Following the Dunkin' Donuts decision and other lower court decisions, members of congress wrote a letter to the DOJ requesting clarity in website accommodations. In its response, the DOJ stated that the absence of a specific regulation was not a legitimate basis for noncompliance with the ADA. It further stated that the absence of a specific technical requirement meant that businesses had flexibility in how to comply.

On Jan. 15, 2019, a panel of the 9th Circuit found that Domino's website and mobile app were subject to the ADA because the restaurant was a place of public accommodation. Robles v. Domino's Pizza, 2019 DJDAR 416. The court found that the website and app connected customers to the goods and services of Domino's physical restaurants and was therefore required to comply with the ADA. The 9th Circuit rejected Domino's 14th Amendment argument that their due process rights were violated because the DOJ had not implemented specific regulations or created a technical standard for ADA compliance. The appeals court also rejected the district court's application of the primary jurisdiction doctrine because the DOJ had expressly disclaimed any interest in promulgating regulations governing website accessibility. The panel reversed the lower court's dismissal of the plaintiff's complaint and remanded for further proceedings.

A wave of additional ADA website compliance litigation is likely, and the number of filed cases is on the rise. Businesses that are places of public accommodation under the ADA should consider reviewing and adopting the WCAG 2.0 guidelines in designing their websites and mobile applications.