Website accessibility suits show no sign of slowing after 9th Circuit ruling

In a state known for technology and innovation, it's no wonder some of the few key decisions in the nascent body of law on website accessibility have come from the Golden State. Most recently, the 9th U.S. Circuit Court of Appeals issued its fifth ruling on the issue of website accessibility in the case of Robles v. Domino's. The decision thwarted Domino's effort to make an early exit from the litigation, and provided a ruling upon which other plaintiff's counsel have based subsequent lawsuits. However, Domino's has indicated its intent to appeal to the U.S. Supreme Court, which could provide some much-needed consistency across courts nationwide, which to date have varied greatly.

Generally speaking, an "accessible website" is one that is coded so assistive technologies that individuals with disabilities use, such as screen readers, can read what is on the web pages in a logical and understandable fashion. Title III of the Americans with Disabilities Act, which applies to business that provide goods or services to the general public, does not contain a standard that companies' websites must meet like the ADA 2010 Standards do for the physical accessibility of businesses. However, experts in the field of digital accessibility look to the Web Content Accessibility Guidelines, authored by an international web consortium, as the standard against which a website's accessibility is measured. Nor does Title III -- signed into law by George H.W. Bush in 1992 -- clearly state that the law applies to websites. Amidst this ambiguity in the law, lawsuits have proliferated.

The 9th Circuit agreed with the lower court's ruling that held the ADA does apply to Domino's website and mobile app but disagreed with the district court's findings on each of the dispositive issues before it: (1) holding Domino's in violation of the ADA when there are no legal technical standards for public accommodations websites would be violation of due process; and (2) under the primary jurisdiction doctrine, courts should hold off on deciding cases where enforcement agencies with special expertise (here, the DOJ) should weigh in first.

On the due process point, the 9th Circuit found that Domino's has been on notice since 1996 of Department of Justice's position that its website and app must provide effective communication. The 9th Circuit also said the district court erred in applying the primary jurisdiction doctrine, noting that since the DOJ is not going to issue any regulations about websites and mobile apps, applying the doctrine would just "needlessly delay" the resolution of the claim, and the application of the ADA to the facts of the case "are well within the court's competence." The court made clear that it was not expressing any opinion about whether Domino's website or mobile app complied with the ADA. The 9th Circuit sent the case back to the district court to proceed with discovery, and then decide whether Domino's website and mobile app comply with the ADA's effective communication and full and equal enjoyment mandates.

In other notable rulings, the 9th Circuit reaffirmed its position that, to be covered by the ADA, a website or mobile app must have a nexus to a physical place of public accommodation, which was "critical" to its analysis since the "alleged inaccessibility of Domino's website and app impedes access to the goods and services of its physical pizza franchises -- which are places of public accommodation." The 9th Circuit also left open the possibility that a 24/7 toll-free phone line could be a way to provide access in lieu of an accessible app or website. The court did not have to consider the question of whether a telephone hotline could be an adequate alternative to an accessible website or mobile app because the district court's holding was not based on the phone line. Finally, in response to Domino's complaint that the DOJ has failed to provide clear direction as to what public accommodations Domino's must do to comply with the ADA with respect to their websites. The 9th Circuit reiterated that "the ADA and its implementing regulations are intended to give public accommodations maximum flexibility in meeting the statute's requirements."

On March 6, Domino's requested a 60-day extension of time to file a petition for review with the U.S. Supreme Court via a newly engaged Supreme Court specialist. Justice Elan Kagan granted the request, and Domino's cert petition is due on June 14. Congress and the DOJ have taken no action to stop the tsunami of lawsuits against thousands of businesses about their allegedly inaccessible websites; though state legislatures, such as New York, are starting to take matters into their own hands. A Supreme Court decision could provide some much-needed clarity and consistency amongst courts nationwide, put an end to the litigation frenzy, and provide some relief for businesses.