When most people think of the federal Americans with Disabilities Act (ADA), 42 U.S.C. section 12101, they think of accessibility of places – of accessible parking spaces, doorways, and bathrooms. But the latest explosion in ADA litigation is from plaintiffs suing company websites for not containing the coding necessary to work with assistive technology.  Now one such case, filed by a blind man against Domino’s Pizza, may be headed to the United States Supreme Court.

Litigation on Website Access

Although online ordering has been part of mainstream American life for some time, these ADA lawsuits against company websites exploded in 2017, after New York federal courts allowed putative class actions against fast-food chain Five Guys and art supply retailer Blick past the motion to dismiss stage.  Markett v. Five Guys, No. 17-CV-788 (S.D.N.Y. July 21, 2017); Andrews v. Blick Art Materials, No. 17-CV-767 (E.D.N.Y. Dec. 21, 2017).  The plaintiffs in both cases claimed that businesses’ websites were subject to the ADA. The defendants claimed that the ADA, enacted in 1990, after the Internet but before the advent of e-commerce as we know it, was never intended to apply to websites – only to physical places. The two New York courts sided with plaintiffs.

Since then, over 2,000 federal lawsuits have been filed alleging that websites have violated the ADA.  This area of law is evolving, and the circuits are divided as to whether federal and state laws require websites to be fully accessible to users with visual impairments when there is no connection between the website and a brick-and-mortar location.

Conflicting Rulings on Website Access

The First, Second, and Seventh Circuits have agreed with plaintiffs that websites (along with other goods and services provided by a place of public accommodation, are places of public accommodation – regardless of whether they have any connection to a physical space. See, e.g. Carparts Distrib. Ctr., Inc. v. Auto. Wholesaler’s Ass’n of New England, Inc., 37 F.3d 12 (1st Cir. 1994); Doe v. Mutual of Omaha Ins. Co., 179 F.3d 557 (7th Cir. 1999); Andrews v. Blick Art Materials, LLC, 268 F. Supp. 3d 381, 393 (E.D.N.Y. 2017).

The Third, Sixth, Ninth, and Eleventh Circuits require a connection, or “nexus” between services (which can include websites) and a physical place. See, e.g., Haynes v. Dunkin Donuts LLC, 2018 WL 3634720, at *2 (11th Cir. July 31, 2018); Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1114 (9th Cir. 2000); Ford v. Schering-Plough Corp., 145 F.3d 601, 614 (3d Cir. 1998); Parker v. Metro Life Ins. Co., 121 F.3d 1006 (6th Cir. 1997).

Now, it seems a lawsuit filed against Domino’s may be headed to the United States Supreme Court. In September 2016, Guillermo Robles, a blind man, sued Domino’s under the ADA and California’s Unruh Civil Rights Act (“UCRA”), Cal. Civ. Code section 51, because the company’s website and app were not accessible.  Specifically, they were not compatible with his computer’s screen-reading program, Job Access With Speech, or with his iPhone’s VoiceOver software. As a result, Robles alleged he could not order a Domino’s pizza online, nor could he claim an offered discount for ordering online.

Domino’s moved for summary judgment or in the alternative to dismiss. The Central District of California (Judge Otero) granted the motion to dismiss. Robles v. Domino’s Pizza LLC, No. CV 16-06599, 2017 WL 1330216 (C.D. Cal. Mar. 20, 2017). First, the court held that the ADA did apply to Domino’s website because the site had a sufficient nexus to Domino’s brick-and-mortar restaurants. Id. at *3.  Second, however, the court agreed with Domino’s that forcing it to make its website accessible would violate due process (and the “primary jurisdiction” doctrine), because the DOJ had not yet issued its promised regulatory guidance regarding website accessibility. Id. at *8.

Plaintiff sought to force Domino’s to comply with WCAG. Id. at *7. Yet the WCAG has three levels of website accessibility: A, AA, and AAA, with AAA being the highest level. Plaintiff’s evidence showed that in two prior enforcement actions, the DOJ had required companies to conform to WCAG’s AA level. Id.  Meanwhile, the DOJ still had not issued its own guidance, which it had been working on since 2010. Id. at *5.

Domino’s argued, and the Central District agreed, that Domino’s could not be required to comply with privately-propounded standards (called Web Content Accessibility Guidelines (at the time, “WCAG 2.0”)) until and unless the DOJ first weighed in on what specific guidelines were or were not required. Id. at *8.

The United States Court of Appeals for the Ninth Circuit reversed the grant of summary judgment. Robles v. Domino’s Pizza LLC, 913 F.3d 898, 902 (9th Cir. 2019).  As an initial matter, the Ninth Circuit agreed that the ADA as written applied to Domino’s website and app, even though customers are typically not in Domino’s physical restaurants when they use the app. “The statute applies to the services of a place of public accommodation, not services in a place of public accommodation.” Id. at 905 (quoting Nat’l Fed’n of the Blind v. Target Corp., 452 F. Supp. 2d 946, 953 (N.D. Cal. 2006). Also, the ADA’s corresponding regulations require places of public accommodation to “furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities. Id. at 904 (quoting 28 C.F.R. section 36.303(c)(1)) (emphasis in original). The Ninth Circuit determined that this requirement applied to Domino’s website and app. Id. at 905.

The Ninth Circuit, however, disagreed with the District Court’s due process ruling.  The short version: DOJ regulatory guidance is not a prerequisite for ADA compliance. Due process, according to the appellate court, requires only that a statute provide clear and “comprehensible standards.”  Id. at 906.  It held that the ADA’s standards are comprehensible, and stated that since 1996, the DOJ had “repeatedly affirmed the application of [the ADA] to Web sites of public accommodations.” Id. at 906-07 (citing 75 Fed. Reg. 43460-01, 43464 (July 26, 2010).)

The Ninth Circuit also found that Domino’s could not wait to provide access until the DOJ gave guidance for a more specific reason –  after the District Court made its ruling in Domino’s, the DOJ had simply given up. Formally, in December 2017, the DOJ withdrew its Advance Notice of Proposed Rulemaking seven years after it first announced its intention to provide guidance. Id. at 903, n.3, 908-09. And, although the DOJ could not even figure out the guidelines for how to make websites accessible after years of public debate, the Ninth Circuit held that Domino’s should have found a way. Id. at 909. The court also noted that Domino’s was not specifically required to comply with WCAG. Id. at 907.

Framing the total lack of regulatory guidance as a benefit rather than a detriment to Domino’s, the Ninth Circuit held that the ADA’s broad brush gives companies the “flexibility” to decide how to comply.  Id. at 908-09.  Quoting another district court, the appellate court also speculated that the DOJ meant this result when it withdrew the notice of rulemaking:

The DOJ’s position that the ADA applies to websites being clear, it is no matter that the ADA and the DOJ fail to describe exactly how any given website must be made accessible to people with visual impairments. Indeed, this is often the case with the ADA’s requirements, because the ADA and its implementing regulations are intended to give public accommodations maximum flexibility in meeting the statute’s requirements. This flexibility is a feature, not a bug, and certainly not a violation of due process.

Id. at 908 (quoting Reed, 2017 WL 4457508 at *5).  Yet even the Ninth Circuit declined to give its own guidance on the accessibility measured Domino’s took after Robles filed his lawsuit.  Specifically, Domino’s added a phone number linked to its website and app that sight-impaired customers with screen-reading software could use to dial for assistance. The Ninth Circuit would not agree that this was enough to provide access. “We believe that the mere presence of the phone number, without discovery on its effectiveness, is insufficient to grant summary judgment in favor of Domino’s.” Id. at 903, n.4.

In other words, it appears that the only way for a business to be certain if its online accessibility measures suffice to meet the ADA…. is to be sued, engage in expensive discovery, and win at summary judgment or trial after years of litigation.

Petition to the Supreme Court

Finding this result woefully inadequate, on June 13, 2019, Domino’s petitioned the Supreme Court for certiorari, requesting that it decide whether the ADA applies to the Internet. The question presented is whether the ADA requires websites or mobile phone applications that offer goods or services to the public “to satisfy discrete accessibility requirements.” The petition has been briefed, and amicus briefs have already been filed by groups including the Restaurant Law Center, the Cato Institute, and the Chamber of Commerce.

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