The Ninth Circuit Court of Appeals recently found that the American with Disabilities Act (“ADA”) applies to websites and apps in some circumstances. The ruling may impact any business in Oregon, Washington, or California that offers goods or services at a physical location and also facilitates access to those goods or service via a website or app.
In Robles v. Domino’s Pizza, plaintiff Guillermo Robles, a blind man, unsuccessfully attempted to place an online pizza order from a nearby Domino’s. Robles uses screen-reading software to access the internet. Robles alleges that Domino’s failed to design, construct, maintain, and operate its website and app to be accessible to him. Specifically, Robles claims that Domino’s failed to design its website and app to allow his software to read the content. Robles seeks damages and a permanent injunction requiring Domino’s to comply with the Web Content Accessibility Guidelines (WCAG) 2.0, private industry standards for website accessibility.
The Ninth Circuit addressed three questions: (1) whether the ADA applies to Domino’s website and app; (2) if so, whether such application violates Domino’s due process rights; and (3) whether the district court should leave the issue to the special competence of an administrative agency under the primary jurisdiction doctrine.
- The ADA Applies to Domino’s Website and App
The ADA requires that places of public accommodation, like Domino’s, provide auxiliary aids and services to ensure effective communication with individuals with disabilities. The Ninth Circuit concluded that, in this case, the ADA requires that Domino’s make visual materials accessible to individuals who are blind. The Ninth Circuit explained that “this requirement applies to Domino’s website and app, even though customers predominantly access them away from the physical restaurant: The statute applies to the services of a place of public accommodation, not services in a place of public accommodation.”
The court emphasized the importance of the “nexus” between Domino’s website and app and its physical restaurants, explaining that the alleged inaccessibility of Domino’s website and app impedes access to the goods and services of its physical restaurants—which are places of public accommodation.
- Application of the ADA to Domino’s Website and App Does Not Violate Domino’s Due Process Rights
Domino’s argued that imposing liability would violate due process because (1) Robles sought to impose liability for Domino’s failure to comply with the private, unenforceable guidelines of WCAG 2.0; and (2) because the DOJ has not issued regulations setting forth specific compliance standards, Domino’s does not have fair notice of what is specifically required to make its website accessible under the ADA. The Ninth Circuit rejected Domino’s arguments.
First, the Ninth Circuit distinguished between liability and remedies, explaining that Robles does not claim that Domino’s is liable for failing to comply with WCAG 2.0. Rather, Robles seeks an order mandating Domino’s compliance with WCAG 2.0 as an equitable remedy if the website and app fail to satisfy the ADA. The Ninth Circuit agreed that the District Court can order such compliance as an equitable remedy.
Second, the Ninth Circuit held that the lack of regulations regarding specific compliance standards for website and app accessibility does not raise due process concerns. The court explained that “the Constitution only requires that Domino’s receive fair notice of its legal duties, not a blueprint for compliance with its statutory obligations.” Indeed, the lack of specific compliance standards is “intended to give public accommodations maximum flexibility in meeting the statute’s requirements.”
- The Primary Jurisdiction Doctrine is Not Appropriate Here
The primary jurisdiction doctrine permits courts to stay proceedings or dismiss complaints that present technical or policy questions that should be addressed by an administrative agency with special expertise. Citing a number of examples, the Ninth Circuit held that the application of the ADA to the facts of this case—whether Domino’s website and app are effective means of communication—is “well within the court’s competence.”
Accordingly, the Ninth Circuit sent the case back to the District Court to determine whether Domino’s website and app comply with the ADA.
A full copy of the opinion can be found here.
Businesses that provide products and services through physical places of public accommodation should be prepared to show that their websites and apps are accessible under the ADA. The Ninth Circuit made clear that this connection between a company’s website or app and the goods and services offered at its physical place of public accommodation was key to its analysis. The court left open whether the ADA covers websites or apps without a brook and mortar connection.
Although the Ninth Circuit did not identify WCAG 2.0 as the standard for website and app compliance with the ADA, the court’s endorsement of WCAG 2.0 as an equitable remedy should encourage businesses to look to the privately drafted guidelines as best practices when assessing the accessibility of websites and apps. The WCAG 2.0 can be accessed here.
If you have questions about whether the ADA applies to your website or need information about how to become ADA compliant, please contact Kristen G. Hilton or Drew L. Eyman at 503-227-1111.