Publication

October 15, 2019Client Alert

Supreme Court Inaction Leaves Website Accessibility Requirements Uncertain

On Monday, October 7, 2019, the United States Supreme Court declined to hear the appeal of Domino’s Pizza in the matter of Domino’s Pizza LLC v. Robles, a case involving a claim the pizza giant’s pizza ordering mobile app is noncompliant with the Americans with Disabilities Act’s (ADA) “place of public accommodation” requirements. The Supreme Court’s decision not to hear the case denies much needed guidance to business owners, website operators, and content developers who struggle to determine whether the ADA applies to their website and what steps are needed to satisfy the ADA’s accessibility requirement with respect to individuals with disabilities.

The ADA became law in 1990, a time when the internet and e-commerce were relatively novel ideas. In part, the ADA requires that no individual be denied the “full and equal enjoyment of the goods, services, facilities, . . . or accommodations of any place of public accommodation” on the basis of disability. The law provides a list of private entities considered “public accommodations,” which specifically includes restaurants and bars. Not surprisingly due to its age, the statute makes no mention of the digital platforms of today’s economy. Historically, courts have struggled to interpret whether Title III’s “public accommodation” definition should include virtual spaces such as websites and mobile apps. Thus far, rulings have been inconsistent and have left many business owners wondering what they need to do to ensure their website is compliant.

The Department of Justice (DOJ), the agency charged with enforcing ADA accessibility requirements, has been similarly unhelpful in clarifying Title III’s applicability. In 2010, the DOJ attempted to clarify confusion surrounding Title III’s applicability to websites, but after seven years without releasing guidance, the DOJ abandoned rulemaking efforts in 2017.

For clarity, the Supreme Court merely decided not to hear Domino’s appeal. The Court made no ruling and interpreted no law. However, the Supreme Court’s inaction will likely solidify the earlier ruling of the Ninth Circuit Court of Appeals in this matter, which held the ADA applies to a restaurant's website and mobile application (app) because they connect customers to the goods and services of the physical restaurant. To extrapolate the court’s ruling, if a website or mobile app connects to a physical business address, then the ADA’s accessibility requirements apply.

The likely practical effect is the continued increase of website-focused ADA litigation. In 2018 alone, the number lawsuits asserting ADA violations nearly tripled to approximately 2,250. Particularly at risk are businesses that sell products through a website or app and also maintain a brick-and-mortar location. Without guidance from the Supreme Court, a patchwork system of interpretation will likely continue. Even if a business or non-profit tries to comply in one state/circuit, nothing stops a person across the country from claiming that these attempts failed to satisfy elusive accessibility standards.

Businesses subject to the ADA should take ongoing action to make sure their websites are accessible. Though it is not DOJ guidance or regulation, the government website usability.gov contains a set of best practices recommendations for creating accessible website content that can serve as a starting point. Businesses should also consider updating vendor and service agreements to ensure their contractors deliver content that is accessible. Regulated companies might also add their voices to an ongoing chorus within Congress and ask the DOJ to step in and provide guidance on these issues. In 2018, a bi-partisan group of 103 members of Congress sent a joint letter to then-Attorney General Jeff Sessions asking the DOJ to issue specific regulations on accessibility standards. Those calls will likely become bolder given the Supreme Court’s lack of action on the issue.

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