What must a private business do to ensure that its website complies with Title III of the Americans with Disabilities Act (“ADA”), which requires that places of public accommodation provide “full and equal enjoyment” to individuals with disabilities? As discussed in a previous post, the ADA was enacted before widespread use of the Internet and does not directly address whether websites are places of public accommodation, or what a business must do so that its website complies with the ADA. The U.S. Department of Justice (“DOJ”) has publicly stated that websites must be accessible to individuals with disabilities, but has yet to articulate specific technical requirements for websites.
The Ninth Circuit’s recent decision in Robles v. Domino’s Pizza, LLC demonstrates the continued uncertainty around Title III compliance for businesses with websites and mobile applications.
1. Factual Background
The Plaintiff, Guillermo Robles, who is blind, alleged Domino’s website and mobile application violated Title III of the ADA. Specifically, he claimed that pizza chain’s website did not allow him or other blind or visually impaired people to complete purchases using screen-reading software. Robles also challenged Domino’s mobile application, which did not allow Robles to access the company’s menus and applications using his iPhone’s “VoiceOver” software program. Robles sought a permanent injunction requiring Domino’s website and mobile application to comply with version 2.0 of W3C’s Web Content Accessibility Guidelines (“WCAG 2.0”), a set of guidelines alleged to be the “gold standard” of ADA compliance.
Domino’s moved for summary judgment or, in the alternative, to dismiss or stay the action. Domino’s argued summary judgment was appropriate because neither Dominos.com nor its mobile application are “places of public accommodation” within the meaning of the ADA. Domino’s also sought summary judgment on due process grounds, arguing the lawsuit violated due process because the ADA, its implementing regulations, and the DOJ’s guidance are silent on the standards that apply to websites. Alternatively, Domino’s argued the case should be stayed pending notice and comment rulemaking because the DOJ has not promulgated any website and mobile application accessibility regulations for private businesses.
2. The District Court Dismisses the Lawsuit
The District Court for the Central District of California held that Title III of the ADA applied to Domino’s website and application, but focused on Domino’s due process challenge, which the Court found meritorious. The Court noted that “a lack of formal guidance in this complex regulatory arena places those subject to Title III in the precarious position of having to speculate which accessibility criteria their websites and mobile applications must meet.” The Court then dismissed the Plaintiff’s lawsuit without prejudice under the primary jurisdiction doctrine, “which allows courts to stay proceedings or dismiss a complaint without prejudice pending resolution of an issue with the special competence of an administrative agency.”
The District Court concluded its opinion by calling on Congress, the Attorney General, and the DOJ to establish minimum accessibility standards for websites.
3. The Ninth Circuit Reverses and Remands
Domino’s victory was short-lived. The Ninth Circuit Court of Appeals agreed that the ADA applies to Domino’s website and mobile application, because the website and application connect customers to the goods and services of Domino’s physical restaurants. However, the Court of Appeals disagreed with the District Court’s due process analysis.
Using a rationale that arguably contradicts decades of well-settled recognitions that ADA Title III can only be enforced against regulated entities who receive prospective notice of how to comply with the law, the Ninth Circuit reasoned that due process requires only that Domino’s receive fair notice of its legal duties, “not a blueprint for compliance with its statutory obligations.” In that regard, the Court found that Domino’s had been on notice that its “online offerings” must comply with the ADA since at least 1996, when the DOJ first announced its position that Title III of the ADA applies to websites of public accommodations. The Court speculated that the DOJ may have declined to issue specific requirements for ADA compliance in order to allow businesses to maintain flexibility in how they comply with the ADA’s requirement of “full and equal enjoyment,” but, in any event, found that the lack of specific regulations does not eliminate the statutory obligation.
The Ninth Circuit also disagreed with the District Court’s reliance on the primary jurisdiction doctrine, which the Ninth Circuit held was inapplicable because the DOJ was aware of the subject matter of the litigation and had expressed no interest, and referring the matter to the DOJ would significantly postpone a ruling that the District Court was otherwise competent to make.
The Ninth Circuit then remanded the action without expressing an opinion as to whether Domino’s website and mobile application comply with the ADA.
The upshot of the Robles case is a vague recognition that businesses with websites subject to Title III of the ADA have flexibility regarding how they comply with the ADA, but they must nevertheless comply with the ADA. That is cold comfort for the thousands of businesses who, like Domino’s, face website accessibility lawsuits that the DOJ could have prevented by following through on prior rulemaking efforts and issuing clear standards for compliance, with prospective application.
Domino’s is likely to appeal the Ninth Circuit’s ruling. On March 6, 2019, the U.S. Supreme Court granted Domino’s application for an extension of time to file a petition for a writ of certiorari to June 14, 2019. If the Supreme Court grants certiorari, it will have significant implications for businesses across the country. We will continue to monitor and provide updates on this case over the coming months.