Our phones have been ringing. On the other end of the line is yet another client who has been named in an onslaught of lawsuits targeting businesses that sell products or services via their websites and who are alleged to have failed to comply with Title III of the American Disabilities Act (ADA). Recently, the U.S. Supreme Court in Domino’s Pizza, LLC v. Robles declined to review Domino’s appeal regarding whether its website and mobile application are required to comply with the ADA. In doing so, the Supreme Court passed on an opportunity to provide some clarity to the issue of the application of the ADA to websites. As a result, the plaintiffs’ bar will almost certainly continue its waive of ADA website lawsuits. Nevertheless, there are steps companies can take to help minimize the risk of such costly litigation.

Previously, the Ninth Circuit Court of Appeals held that the ADA applied to Domino’s website and mobile app because the ADA mandates that places of public accommodation, like Domino’s, provide auxiliary aids and services to make visual materials available to individuals who are blind. It further held that Dominos’ constitutional challenge that applying the ADA to its website or app violated its due process rights because the Department of Justice (DOJ) failed to provide helpful guidance interpreting the Act despite announcing its intention to do so was without merit. With the Supreme Court’s declination to review the appeal, the Ninth Circuit’s law is clear that brick and mortar places of public accommodation must ensure that their website and mobile applications are ADA compliant. Businesses should be proactive and not await the DOJ’s guidance.

The ADA & DOJ guidance

Title III of the ADA, 42 U.S.C. § 12182, provides that “[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” 42 U.S.C. § 12182. Title III is enforced in two primary ways. First, individuals may bring a private action under Title III for injunctive relief and may, at the court’s discretion, recover attorneys’ fees. See 42 U.S.C. § 12188(a)(2); 42 U.S.C. § 12205. Second, the DOJ, which is responsible for enforcing the ADA, may bring (or intervene in) a lawsuit to obtain monetary damages and/or equitable relief. See 42 U.S.C. § 12188(a)(1). The DOJ may also obtain substantial civil penalties for violations of Title III. In addition, some states (e.g., California) have enacted statutes that provide for a separate cause of action where monetary damages may be sought for each violation.

The DOJ has yet to issue regulations regarding specific Internet accessibility obligations of private sector websites under Title III. In July 2010 the DOJ issued an Advance Notice of Proposed Rulemaking (ANPRM) on the subject but withdrew the ANPRM in 2017. In a 2018 letter to members of Congress, the DOJ reaffirmed its position that the ADA “applies to public accommodations’ websites” but declined to endorse any particular standard of compliance, such as the standards of the Web Content Accessibility Guidelines (WCAG-2), published by the World Wide Web Consortium, instead saying that each business has “flexibility in how to comply with the ADA’s general requirements of nondiscrimination and communication.”

Robles v. Domino’s Pizza, LLC

In the Robles case, plaintiff Guillermo Robles, a blind man, sued Domino’s, alleging that he could not order a customized pizza from Domino’s website and app utilizing his screen-reading software. Domino’s moved for summary judgment on the grounds that (1) the ADA did not apply to Domino’s website or app, and (2) applying the ADA to its website or app violated Domino’s due process rights because the DOJ failed to provide helpful guidance interpreting the Act, despite announcing its intention to do so. The district court agreed with Robles that the ADA applied to Domino’s online offerings but held that applying the ADA to its website or app violated Domino’s due process rights.

On appeal, the Ninth Circuit agreed with the district court that the alleged inaccessibility of Domino’s website and mobile app impeded access to the goods and services of the company’s brick and mortar restaurants and, because of the nexus between the website and app and the company’s physical restaurants, the ADA applied. Notably, the Ninth Circuit did not address whether Title III would apply to inaccessible websites or apps if the inaccessibility did not impede access to the goods and services of a physical location. However, the Ninth Circuit reversed the district court on the due process issue. It held that the district court could order compliance with WCAG as an equitable remedy if the website and app fail to satisfy the ADA. The court noted Robles only sought to impose liability on Domino’s for failing to comply with provisions of the ADA, not for the failure to comply with WCAG.

What this decision means

Circuit courts remain split on Title III’s applicability to websites and apps, and the Supreme Court’s decision—as well as the DOJ’s current stance—means that the deluge of lawsuits against businesses of all sizes, and in nearly every industry, will continue. In the face of this continued risk of exposure, companies should take steps to minimize the likelihood that they will face litigation due to the inaccessibility of their website or mobile app, which include the following:

Have an accessibility policy that that is posted on the footer of your main page;

Review the pages of your website and mobile apps that are key for a client to access in order to view, use or buy your products and services and ensure they are compliant with WCAG 2.0 or 2.1 level AA standards to the extent practicable;

Have your key pages regularly audited using a variety of screen readers, operating software, and hardware;

Provide accessible alternatives, such as a staffed telephone line, or preferably an online chat function, for individuals to access the information, goods, and services found on your website; and

Designate a person within your organization to be your accessibility coordinator.

Jeremy Wolk is a partner in Nixon Peabody LLP’s Business & Finance department in Rochester, New York. He developed this article with Nixon Peabody attorneys Marx Calderon, Matthew McLaughlin, and Staci Riordan.