By declining to hear an appeal by Domino’s on October 7, 2019, the United States Supreme Court refused to weigh in on the ever-increasing battle over when and how Title III of the Americans with Disabilities Act (“ADA” or “Title III”) applies to websites, mobile apps, and related technologies. The high court’s denial of certiorari in the Domino’s case means that businesses will continue to face uncertainty due to the patchwork of legal decisions around the country and the Department of Justice’s earlier cancelation of its rulemaking efforts.

One thing that is certain: businesses can expect an increasing number of demands and lawsuits from firms purporting to represent blind/low vision and deaf/hearing impaired individuals who claim difficulty in accessing portions of their websites. These demands often seek an early settlement requiring the business to upgrade its website and come into compliance with certain voluntary accessibility standards and pay attorneys’ fees and costs and, in some states, damages to the plaintiff based on parallel state and local laws.

The ADA Patchwork

Title III of the ADA prohibits discrimination on the basis of disability in the activities of places of public accommodations. Generally, that means businesses that are open to the public and fall within one or more of the 12 enumerated categories, such as all sales and service establishments, restaurants, movie theaters, schools, day care facilities, recreation facilities, and doctor’s offices, must not discriminate on the basis of a disability.

The ADA was enacted before business was conducted over the internet and has not been amended over time to keep up with technology. In late 2017, the Department of Justice, which is the agency primarily responsible for enforcement of the ADA, abandoned its efforts to make rules and measurable standards regarding website accessibility. However, that has not stopped the DOJ from taking the position that the ADA applies to public-facing websites of business which otherwise provide public accommodations under Title III. The DOJ has further said that the law applies to such a business even if it does not operate any brick and mortar locations. For example, in this Settlement Agreement, the DOJ asserted that online grocer Peapod is a sales and service establishment and therefore subject to public accommodation under Title III of the ADA despite having no brick and mortar stores open to the public.

Without any helpful regulatory guidance from the DOJ, the Courts have reached various conclusions, meaning a business’ potential defenses to a lawsuit could depend on the jurisdiction in which the claim is filed. Courts within four of the eleven federal circuits (the Third, Sixth, Ninth, and Eleventh Circuits) hold that “a place of public accommodation” under the ADA means a physical location. In these jurisdictions, a website itself cannot constitute a place of public accommodation, unless a website has a physical nexus to goods or services available at the physical location in which case it must comply with the accessibility requirements of the ADA. Courts within the First, Second, and Seventh Circuits hold that the ADA can apply to a website independent of any connection between the website and a physical location.

The Impact of the Domino’s Decision

In the Robles v. Domino’s Pizza case, the district court dismissed the action under the ADA and California’s Unruh Civil Rights Act after finding that although Title III applied to the company’s website and mobile app (because of the connection between them and Domino’s physical locations), the lack of regulations and technical assistance from the DOJ created a due process concern, and dismissal was appropriate under the primary jurisdiction doctrine. The plaintiff appealed the dismissal.

The Ninth's Circuit decision on appeal confirmed that the ADA applies “to the services of a place of public accommodation, not services in a place of public accommodation.” Therefore, the inaccessibility of a company’s website or app which have the effect of impeding access to the goods and services of the physical locations, constitutes a violation of the ADA. The Ninth Circuit rejected the due process arguments and held that there is no requirement that “Congress or DOJ spell out exactly how Domino’s should fulfill this obligation” to ensure that its website and mobile app provide effective communication and facilitate full and equal enjoyment of the goods and services it provides.

Arguably, this decision extends the requirements for businesses sued within the Ninth Circuit. Domino’s argued in its Petition to the Supreme Court that the lower court’s decision which required that “each method of ordering a pizza, in isolation, must be accessible to customers with disabilities” effectively treated the website and mobile app as standalone public accommodations that must each independently comply with Title III. Domino’s implored the Court to review the case, predicting that the current flood of litigation would turn into a tsunami if the Ninth Circuit’s decision were to be left undisturbed. Now that the Supreme Court has refused to take up the case and address the flood of litigation, the tsunami warning has been issued.

Next Steps for Businesses with Websites

Businesses which fit into one of the categories of public accommodations under the ADA should review their websites and mobile apps to ensure accessibility is provided to customers, as there are benefits to the business in addition to avoiding a demand or lawsuit from a disabled plaintiff. Businesses should consider conforming their websites and any mobile apps to the WCAG 2.0 and 2.1 Level AA success criteria.