A recent decision by the United States Court of Appeals for the Ninth Circuit provides an even stronger basis for litigation against companies whose websites are not in compliance with the Americans With Disabilities Act (ADA).
As the internet plays an ever-greater role in society, the ability to navigate the online world presents extraordinary challenges for visually impaired individuals. Many blind people employ “screen reader” tools that read the contents of the website aloud. Poorly designed websites, improper labels of pictures, and broken links all hinder the ability of the software to adequately navigate pages on the internet.
In United States, federal disability law provides one way for the blind to hold companies accountable for maintaining accessible websites. Title III of the ADA provides “[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” Courts have interpreted places of public accommodation to include websites connected to physical businesses.
In recent years there has been a surge of cases aimed at forcing companies to make their websites more accessible to the visually impaired. Though many of these lawsuits settle for small amounts and an agreement for the company to improve the website within two years, some companies have resisted private enforcement of the ADA.
In January, the Ninth Circuit decided Robles v. Domino’s Pizza, LLC, 918 F.3d 898 (9th Cir. 2019), a case that advocates hope will pave the way for more ADA litigation on the West Coast. In Robles, the Ninth Circuit addressed three main questions: (1) whether the ADA applied to Domino’s website and app; (2) whether that application raised due process concerns; (3) whether a federal court should invoke the “primary jurisdiction doctrine” because of incomplete guidance provided by the Department of Justice on how to “make websites and apps comply with the ADA.”
First, the court held that the ADA was applicable to Domino’s website and app because “the 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.” As anyone who has watched a Domino’s advertisement can attest, the website and app are two of the primary “means of ordering Domino’s products.”
Second, the Ninth Circuit found no due process violation because Domino’s had “received fair notice that its website and app must comply with the ADA.” In doing so, Judge Owens noted that the ADA articulates “comprehensible standards to which Domino’s conduct must conform” and that it is not necessary for the Department of Justice to “issue specific guidelines for website and app accessibility” in order to hold Domino’s accountable. In doing so, the court seems to put all businesses on notice that compliance is required despite incomplete guidance.
Finally, the court found that the “primary jurisdiction doctrine” does not apply in this instance. The doctrine “allows courts to stay proceedings or to dismiss a complaint without prejudice pending the resolution of an issue within the special competence of an administrative agency.” Even though subject matter expertise would be helpful in this case, postponement was unnecessary because the Department of Justice expressed no interest in the subject matter of the litigation.
Though businesses may find the proliferation of ADA lawsuits trying, the litigation provides the visually impaired with a low-cost method of spurring corporate compliance while improving access to an essential feature of modern life.*
*Nicholas Orr is an Associate Editor on the Michigan Technology Law Review. He can be reached at firstname.lastname@example.org.