Four recent developments illustrate continued unpredictability in litigation concerning whether e-commerce websites must comply with the Americans with Disabilities Act (ADA).

Background

The ADA requires that places of public accommodation must take steps to ensure that individuals with disabilities are not denied access. Over the last 15 years, there has been increasing litigation about whether e-commerce websites are places of public accommodation—if a website is a place of public accommodation, and the website is not designed to work with tools used by disabled individuals to navigate websites, the website operator risks claims seeking injunctive relief and attorney’s fees.

Perhaps the best-known example is the case brought by the National Federation of the Blind against Target, concerning the Target.com website. In that case, a California federal court held that there must be a nexus between the challenged service and a place of public accommodation, found that the inaccessibility of Target.com impeded the full and equal enjoyment of goods and services offered in Target stores, and allowed a class action to proceed. Nat’l Fed. of the Blind v. Target, 452 F. Supp. 2d 946 (N.D. Cal. 2006); 582 F. Supp.2d 1185 (N.D. Cal. 2007). That case settled with Target paying nearly $10 million and committing to adhere to a rigorous program for ensuring that Target.com was accessible.

A few years later, a federal court in Massachusetts reached a different result, holding that Netflix’s website was a place of public accommodation even though Netflix has no physical presence. Nat’l Ass’n of the Deaf v. Netflix, Inc., 896 F.Supp.2d 196 (D. Mass. 2012). The opposite conclusion—that a stand-alone website is not a place of public accommodation—was reached in Earll v. Ebay, Inc., 599 Fed. App’x 695 (9th Cir. 2015).

In 2010, the Department of Justice (DOJ) began a rulemaking proceeding to develop rules governing the application of the ADA to commercial websites, but that process was repeatedly postponed.

Recent Developments

Four recent developments illustrate that the law on this topic is still unsettled—it varies from jurisdiction to jurisdiction and from case to case.

1) In a recent case against Dominos Pizza LLC, the plaintiff alleged that Dominos had failed to design and construct its website and mobile app to be accessible to blind or visually-impaired people. Dominos conceded that its website had a nexus with its physical stores, but successfully argued that the case should be dismissed because the DOJ had not issued concrete guidance regarding the web accessibility standards that a commercial website must meet. Robles v. Dominos Pizza LLC, No. CV-16-06599-SJO(SPx) (C.D. Cal. Mar. 20, 2017). This case is currently on appeal to the Ninth Circuit Court of Appeals.

2) A few months later, another judge in the Central District of California issued a decision going the opposite way. Gorecki v. Hobby Lobby Stores, No. CV-17-1131-JFW(SKx) (C.D. Cal. June 15, 2017). In response to the plaintiff’s allegations that Hobby Lobby’s website was inaccessible to visually impaired individuals, Hobby Lobby brought a motion to dismiss, based primarily on the due process argument that had succeeded in the Dominos case. The Court denied Hobby Lobby’s motion, holding that even though the DOJ had not issued a specific compliance standard, the DOJ’s actions and statements had placed Hobby Lobby on notice that places of public accommodation have an affirmative obligation to ensure that disabled individuals have full and equal use of commercial websites as to non-disabled individuals. This case is still pending at the trial court level.

3) Also in June 2017, a Florida federal court decided the first website ADA case to go to trial. Gil v. Winn-Dixie Stores, Inc., No. 16-CV-23020 (S.D. Fla. June 13, 2017). In general, it is rare for cases to go all the way through trial—cases usually settle, are decided on dispositive motions, or get resolved in some other way before trial. But in Gil, Winn-Dixie decided to take its chances at trial, apparently resting its hopes on large part on the fact that its website cannot be used to purchase groceries. Winn-Dixie’s arguments did not work, in part because the website can be used for services such as managing prescriptions and linking coupons to a rewards card. After a two-day bench trial, the court held that Winn-Dixie had violated the ADA. At trial, Winn-Dixie estimated that the cost of upgrading its website to be compliant would be $250,000. The Court said that estimate “seems high,” but found that it “pales in comparison to the $2 million Winn-Dixie spent in 2015 to open the website and the $7 million it spent in 2016 to remake the website.” The Court imposed injunctive relief, including that Winn-Dixie must update its website to meet accessibility standards and must require third party vendors who participate on the website to do the same. Winn-Dixie has appealed the decision to the Eleventh Circuit Court of Appeals; in the meantime, the Court recently granted the plaintiff’s motion for slightly over $100,000 in attorney’s fees and costs.

4) Finally, the Department of Justice recently placed its long-planned website accessibility regulations on an inactive list. This appears to be the result of President Trump’s executive order that for every new regulation created by a federal agency, two previous regulations must be identified for elimination. Previously, the DOJ had been actively involved in enforcement of the ADA against website operators; perhaps it will be less active in this area going forward.

These events (not to mention numerous other court decisions in 2017) demonstrate that it is very difficult to assess potential liability relating to website accessibility. The best approach is to avoid litigation in the first place.

Practical Tips

First, any company that operates an e-commerce website should ensure that its website is accessible to persons with disabilities. Companies often ask what technical standard they must comply with to ensure accessibility. There is no clear legal authority specifying a technical standard applicable to all websites, but most observers recommend compliance with the Web Content Accessibility Guidelines (WCAG), version 2.0, Levels A and AA (WCAG 2.0 AA). The WCAG is a set of standards published by the World Wide Web Consortium (W3C), the primary international Internet standards organization, and the W3C publishes guidance about how to comply. Any competent professional company that designs websites and apps should be able to incorporate compliance with WCAG 2.0 AA into their design work. And, there are numerous companies who can audit a website’s accessibility and remedy any problems.

Second, if your company is threatened with litigation alleging claims related to website accessibility, consult with experienced counsel right away. It is important to quickly assess the facts underlying the claim, the applicable law in your jurisdiction, and other related issues.