On 7 October 2019 the Supreme Court denied Domino's Pizza's request to review the Ninth Circuit's decision that Domino's must make its website accessible to persons with visual impairments under the Americans with Disabilities Act (ADA). In its prior decision, the Ninth Circuit had:
- upheld the district court's decision that the ADA applies to websites; but
- reversed the district court's dismissal of claims against Domino's, which had been based on the absence of regulatory standards for website accessibility under the ADA.
Domino's petition for certiorari was the first time that the Supreme Court has been asked to consider the issue of website accessibility.
Over the past few years, creative plaintiff firms representing visually impaired persons have filed tens of thousands of similar website accessibility suits and demand letters nationwide – primarily in California, New York and Florida. These suits have targeted all categories of business, no matter the size or industry. Website accessibility suits typically claim that a visually impaired individual (typically a supposed customer or job applicant) was unable to access a company's website with the aid of screen reader technology because the website in question had not met certain coding or other standards. The plaintiffs in these lawsuits contend that their inability to access the websites using screen readers constitutes discrimination under the ADA and other similar state statutes.
At best, there is conflicting case law between states, based on the volume of filed lawsuits that typically nets out in a plaintiff's favour, with neither the Department of Justice (DOJ) nor legislative bodies articulating clear legal or technical standards for compliance. In fact, the DOJ has taken the position that compliance with the Web Content Accessibility Guidelines 2.0 – which had otherwise achieved a broad consensus as the applicable technical standards for determining website accessibility – is not determinative of compliance with the ADA.
The Supreme Court's decision to decline review of the Ninth Court's finding that the ADA applies to Domino's website will ensure that the spate of lawsuits filed (and demand letters sent) across the United States, to any commercial enterprise with a website, will continue for the foreseeable future. Indeed, some see the Supreme Court's denial as a statement that the ADA does, in some respect, apply to websites and that website owners' have obligations thereunder to ensure that their websites are accessible to persons with disabilities, including visual impairment.
Given that any business with a website may be targeted by website accessibility claims, companies are strongly recommended to take preventative measures, including adopting a website accessibility policy, reviewing options to scan and updating their websites to comply with trending website accessibility and lawsuit deterrence standards.
For further information on this topic please contact Nick S Pujji at Dentons' Los Angeles office by telephone (+1 213 623 9300) or email ([email protected]). Alternatively, contact Monica L Irel at Dentons' Miami office by telephone (+1 305 670 4843) or email ([email protected]). The Dentons website can be accessed at www.dentons.com.
Timothy J Straub, managing associate, also assisted in the preparation of this article.