When the Americans with Disabilities Act of 1990 (ADA) was signed into law, the World Wide Web did not yet exist. Nonetheless, the United States Court of Appeals for the Ninth Circuit has recently joined a growing number of jurisdictions in deciding that the ADA’s accessibility requirements on places of public accommodations apply to commercial websites. Although the Supreme Court has yet to weigh in on the issue, the court’s ruling in Robles v. Domino’s Pizza, LLC, No. 17-55504, 2019 U.S. App. LEXIS 1292, at *1 (9th Cir. Jan. 15, 2019) increases the pressure on commercial website owners to ensure compliance, or else face possible litigation.
Which Businesses Are Impacted?
Our common understanding of accessibility under the ADA brings to mind access ramps, sufficiently wide doorways, and other physical accommodations. Now that many people “access” physical buildings through the internet, accommodation must be provided in the form of a website’s compatibility with “screen reader” software, which vocalizes visual information on web pages and applications for blind users.
While this may seem counter-intuitive (after all, Domino’s did nothing to keep blind patrons from calling or personally visiting a restaurant), the Robles court, citing other opinions, stated that “The [ADA] applies to the services of a place of public accommodation, not services in a place of public accommodation.” Robles at *10 (internal citations omitted). Because, in this case, the physical pizza shops were places of public accommodation and blind customers had no way of accessing the goods offered for sale inside through the app or website, they were, in the eyes of the Ninth Circuit, effectively denied access to the buildings themselves.
What Does Compliance Mean?
In Robles, the defendant argued that compliance with the ADA violated due process because Domino’s did not have “fair notice of what specifically the ADA requires companies to do in order to make their websites accessible.” Robles at *18. This argument proved unavailing. “The Constitution only requires that Domino's receive fair notice of its legal duties, not a blueprint for compliance with its statutory obligations.” Id at *19. In fact, the Court found that the lack of specific instruction in the ADA “is a feature, not a bug” because it keeps the statute up-to-date and incentivizes businesses to err on the side of caution when accommodating customers with disabilities. Id (internal citations omitted).
That reasoning, while noble, certainly doesn’t put the minds of business owners at ease.
What Can Be Done?
Be prepared! Since a person anywhere in the country can type in your commercial website URL, your business is vulnerable under Ninth Circuit law, or under the law of the various circuits the Ninth Circuit has just agreed with (including the Second Circuit).
Despite the lack of explicit rules, there are several services that work to audit websites to ensure ADA compliance (as most recently defined and understood). Gordon & Rees works with these services to ensure that our clients limit their legal exposure.
If you are subject to a claim under the ADA, our experienced attorneys across the nation are prepared to help resolve the dispute quickly, efficiently, and affordably.
The authors are Mercedes Colwin and Sebastian Clarkin.