Hoping for much needed guidance on website accessibility requirements under the ADA, the business community targeted by these cases has closely followed the Petition for Writ of Certiorari to the Supreme Court in Domino's Pizza, LLC v. Robles (see our previous coverage here). Unfortunately, but not unexpectedly, no relief is in sight—this week the Supreme Court denied the petition in a summary order.
The Supreme Court's inaction leaves in place the Ninth Circuit's holding that the ADA applies to websites that facilitate access to goods and services of places of public accommodation. Robles v. Domino's Pizza, LLC, 913 F.3d 898, 905 (9th Cir. 2019). Because Dominos' website connects users to its restaurants that are "places of public accommodation" under the ADA, the Ninth Circuit found that Title III of the ADA also applied to Domino's website. Id. at 905. Significantly, however, the Ninth Circuit did not determine whether the ADA applies to websites for e-commerce businesses that lack a corresponding brick-and-mortar presence. Id. at 905, fn. 6. Thus, the open question that remains is whether and how ADA standards apply to businesses that only operate online.
In Thurston v. Midvale Corp., 252 Cal. Rptr. 3d 292, 300-301 (Ct. App. 2019), the California Court of Appeal held that Title III of the ADA applies to websites "connected to a physical place of public accommodation" but, like the Ninth Circuit, the Thurston court declined to decide whether the ADA also applied to websites that had no corresponding brick-and-mortar stores. Id.at 302. The California Supreme Court, however, recently adopted a broader view in White v. Square, Inc., 7 Cal. 5th 1019 (2019). While White was not a website accessibility case, the California Supreme Court determined that a plaintiff maintained standing to sue under California's Unruh Act if he encountered a discriminatory policy online, as such an experience was "equivalent to presenting oneself for services at a brick-and-mortar store." Id. at 1023. Because many California website cases are based on alleged Unruh Act violations, the expansive holding in White already has plaintiff's counsel asserting that an e-commerce only business can be liable for an inaccessible website. See id. at 1032-1033.
Without any clear website accessibility regulations, businesses have questioned whether the WCAG 2.0 standards should be their compliance goal. The Ninth Circuit noted that the WCAG 2.0 standards have been widely adopted by federal agencies as the appropriate accessibility standards, and that the DOJ has been mandating that ADA-covered entities comply with WCAG 2.0 in consent decrees relating to website access. Robles at 902, fn. 1. While falling short of proclaiming that businesses must meet the WCAG 2.0 standards, the Ninth Circuit expressly held that courts have broad power to craft equitable remedies in website access cases, including requiring that sites comply with privately-created standards like the WCAG. Id. at 907.
Plaintiffs' lawyers will no doubt be emboldened by the Court’s denial of cert in Domino's, and without DOJ-issued regulations, the nonstop tide of accessibility lawsuits will continue. Businesses should take steps towards website accessibility so that persons with sight or hearing disabilities can access the same basic tasks on the site, such as making purchases, that non-disabled users can perform.