The number of Americans with Disabilities Act claims brought based on inaccessible websites has increased at an exponential rate over the past two years. Plaintiff’s counsel have taken advantages of the relatively undeveloped case law in this area to allege that websites that are not compatible with screen reading technology discriminate against blind persons in places of public accommodation.
In response, many defendants have argued that websites are not places of public accommodation, that imposing uncertain accessibility requirements on defendants would violate the due process clause, and that the primary jurisdiction doctrine mandates that the courts should wait for the Department of Justice to provide further guidance.
Some district courts, including the Central District of California where Robles v. Domino’s Pizza originated, agree with defendants.
Robles v. Domino’s Pizza Does Away With Defenses to ADA Website Claims
However, the U.S. Court of Appeals for the Ninth Circuit Jan. 15 published its opinion in Robles v. Domino’s Pizza, LLC (2019 BL 13200, No. 17-55504), essentially annihilating these defenses and leaving many ADA website accessibility defendants highly exposed to liability.
The Robles court answered three main questions:
- Whether the ADA applies to websites and apps;
- If so, whether that holding raising due process concerns; and
- Whether a federal court should invoke the primary jurisdiction doctrine because the DOJ has failed to provide meaningful guidance on how to make websites and apps compliant with the ADA.
Answering the first question, the court found that the ADA applies to Domino’s website and app, “even though customers predominantly access them away from the physical restaurant” because there is a nexus between Domino’s website and app and their physical locations. (Id. at *4-*5.) While this is unfavorable news for brick and mortar defendants, this establishes a clear favorable rule for defendants who maintain an exclusively online presence.
The court also found that the fact that the DOJ has not articulated a website accessibility standard does not violate a defendant’s due process rights because the “ADA articulates comprehensible standards to which Domino’s conduct must conform.” (Id. at *5-*6.) The plaintiff’s request that the trial court order Domino’s to comply with the WCAG 2.0 (Web Content Accessibility Guidelines) standards wasn’t a due process violation because the plaintiff was not seeking to impose liability for failure to comply with these standards; rather, the court found that compliance with the WCAG 2.0 standard was merely an available remedy for the ADA violation.
Lastly, the court found that the primary jurisdiction doctrine was inapplicable, since waiting for the DOJ to provide guidance on accessibility standards would cause “needless” delay and the trial court is competent to determine the application of the ADA to the facts of this case. (Id. at *9-*10.)
What This Means For ADA Website Accessibility Defendants?
ADA website accessibility lawsuits are becoming increasingly difficult to defeat at the pleading stage for defendants whose websites concern brick and mortar stores. Defendants should therefore be thinking ahead, as many defenses remain that can be raised at summary judgment.
Notably, defendants should seek to remediate their websites prior to a lawsuit being filed, as a good faith effort to remediate remains a valid defense to an ADA claim. (Raising this issue with plaintiff’s counsel could also aid in securing a nuisance value settlement prior to litigation beginning.)
And, defendants should evaluate whether remediation would “fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden,” which is an exception to compliance. (42 U.S.C. § 12182(b)(2)(A)(iii)); (see also 28 C.F.R. § 36.303(a)).
While the Robles decision may seem to be a big blow to defendants, it is not the death knell.
Joshua Briones is a member with Mintz and serves as managing member of the firm’s Los Angeles office. He is a highly experienced trial lawyer with a national practice focused on complex business litigation related to privacy and regulatory matters, marketing and advertising issues, ADA website accessibility, and securities matters.
Nicole V. Ozeran is a Los Angeles-based associate with Mintz. Her practice focuses on complex corporate litigation, with an emphasis on consumer fraud, online and telephone marketing, false advertising, and regulatory and statutory compliance issues.