EMPLOYMENT LAW: Ninth Circuit Revives ADA Suit For Failure To Provide A Reasonably Accessible Website For The Blind

On January 15, 2019, The United States Court of Appeals For The Ninth Circuit reversed a lower court ruling that dismissed a blind man’s lawsuit against Domino’s Pizza for its alleged failure to develop a website and mobile application that fit the requirements of the Americans With Disabilities Act. (Robles v. Domino’s Pizza, LLC (9th Cir. 2019) 913 F.3d 898.)

As an initial matter, the Ninth Circuit, and the District Court, held that the ADA fully applies to Domino’s website and mobile applications. They did so because courts have frequently held that that the ADA applies to all auxiliary services that have a sufficient connection to “actual, physical places where goods and services are sold.” Weyer v. Twentieth Century Fox Fil Corp (9th Cir. 2000) 198 F.3d 1004, 1114. Thus, because Domino’s website and mobile applications are auxiliary services or vehicles that are used to obtain goods from physical restaurants, the ADA applies.

This requirement is important because it limits the type of business that is obligated ensure that its website complies with the ADA. The Court only held that websites that serve as auxiliary services or vehicles for the goods and services of a site of public accommodation are covered.

The next issue the Court had to decide was whether or not a court could impose liability given the absence of specific regulations by the Department of Justice, the agency tasked with interpreting the ADA. The Court rejected Domino’s argument that the DOJ had not issued sufficient regulations for two principal reasons. First, the DOJ had already promulgated regulations that businesses must provide “appropriate auxiliary aids and services . . . to ensure effective communication” including “accessible electronic and information technology . . . [or] effective methods of making visually delivered materials available” to the blind. (28 C.F.R. § 36.303(b)(2).) Second, the DOJ stated, in 1996, that the ADA applies to “Web sites of public accommodations.” (75 Fed. Reg. 43460-01, 43464 (July 26, 2010).) These regulations, along with the text of the act, were sufficient, according to the Court, to create a statutory duty that Domino’s was obligated to follow and whose breach could lead to liability.

Lastly, the Court addressed some of the specific remedies Plaintiff sought. Here, the Court largely deferred the question to the district court on remand given that the Plaintiff was only seeking to impose liability for failure to comply with the ADA, not for failing a specific guideline. While the Plaintiff also sought an injunction to require Domino’s to comply with a common industry standard for website accessibility, known has WCAG 2.0, that was merely a proposed remedy for the Court to consider. Thus, the Court held that the district court was first obligated to to determine whether Domino’s website and application were determined to be deficient and then create appropriate injunctive relief, which could include reference to WCAG 2.0.

This favorable precedent from the Ninth Circuit is likely to increase the litigation surrounding website accountability. So, it is important that the covered businesses either ensure that their websites are compliant or, potentially, provide suitable alternatives. This is because, beyond potentially costly redesigns of websites, operators who are found liable for failure to provide sufficient accommodations risk the possibility of having to pay plaintiff’s attorney’s fees, statutory damages in the amount of $4,000, if the Plaintiff files a claim for violation of California’s Unruh Act, and any other damages the court deems proper. Already, some California Superior Courts have imposed liability, damages, and attorney’s fees for uncompliant websites. (See, e.g., Thurston v. Midvale Corp. (Cal.Super.LA May 21, 2018) BC663214, 2018 WL 6990623; Davis v. BMI/BND Travelware (Cal.Super.SB March 21, 2016) CIVDS1504682, 2016 WL 2935482.)