Recent alerts from Steptoe have covered the constantly shifting landscape of ADA website accessibility litigation (see our previous coverage here, here, here, and here). Two recent developments – a letter from the US Department of Justice (DOJ) and oral argument before the Ninth Circuit in Guillermo Robles v. Dominos Pizza LLC – demonstrate how the lack of clear guidance is making ADA compliance issues difficult for both businesses and the courts.

DOJ Fails to Offer Much Needed Guidance in Recent 'Response'

As we noted in a recent article, on June 20, 2018, 103 members of the US House of Representatives sent a letter to US Attorney General Jeff Sessions urging the DOJ to "state publicly that private legal action under the ADA with respect to websites is unfair and violates basic due process principles in the absence of clear statutory authority and issuance by the department of a final rule establishing website accessibility standards." The letter also asked the DOJ to "provide guidance and clarity with regard to website accessibility under the … ADA."

On September 25, 2018, the DOJ's Office of Legislative Affairs responded and affirmed its long-standing position that websites are places of public accommodation subject to the ADA’s requirements. But it also stated that website operators have "flexibility" in how to comply and that noncompliance with voluntary technical standards (such as WCAG 2.0) did not necessarily indicate noncompliance with the ADA itself. While not providing any affirmative guidance for businesses, the DOJ's statement certainly weakens any argument that noncompliance with a voluntary technical standard is a per se violation of the ADA. Through this, the DOJ essentially punted the question of clear guidance back to Congress and to the courts.

Ninth Circuit Notes DOJ’s Failure to Illuminate Compliance for Businesses

This lack of clear guidance was on full display on October 12, 2018 when the Ninth Circuit heard oral argument in Guillermo Robles v. Dominos Pizza LLC. The plaintiff in Dominos claimed that Dominos' website and mobile app failed to comply with ADA accessibility requirements; the district court dismissed the case on primary jurisdiction grounds, finding that the DOJ was better suited to regulate in this highly technical area. The district court was also hesitant to require businesses to comply with third-party standards, such as WCAG 2.0, absent clear regulatory guidance. During the argument, the Ninth Circuit appeared to indicate that the ADA's accessibility requirements applied to websites (a question of first impression in the Ninth Circuit). The panel was less certain, however, about the issue of primary jurisdiction – agreeing that the current state of affairs was unworkable and unhelpful for businesses trying to comply with the ADA, but also noting the DOJ’s failure to announce new guidance in this area.

Unfortunately for businesses that were hopeful for direction from this case, whatever the outcome, it does not appear that clear guidance for ADA website compliance – whether from the DOJ or the Ninth Circuit – will be on the way anytime soon.