If your company’s website has not been updated recently, then you may want to contact a web developer immediately. On October 7, 2019, the Supreme Court of the United States denied a petition from Domino’s Pizza to consider the 9th Circuit’s holding that the American with Disabilities Act (“ADA”) required Domino’s and other retailers’ website to be accessible to the disabled.
In Robles v. Domino’s Pizza, LLC, a blind man, plaintiff Guillermo Robles, attempted to place an order for a customized a pizza through Domino’s website and mobile application. 913 F.3d 898, 905-06 (9th Cir. 2019). Since Domino’s website was not coded to permit screen-reading software used by blind individuals to navigate the internet on computer and phone, Mr. Robles was not able to complete his order. Mr. Robles filed suit against Domino’s, alleging that the company failed to “design, construct, maintain, and operate its [website and mobile application] to be fully accessible to [Mr. Robles],” in violation of the ADA and the California Unruh Civil Rights Act. Domino’s moved for summary judgment, which the district court denied, and Domino’s appealed to the Ninth Circuit.
The Ninth Circuit affirmed the lower court’s decision, holding that the ADA applies to Domino’s website and mobile application. Robles v. Domino’s Pizza, LLC, 913 F.3d 898, 902 (9th Cir. 2019). First, the court noted that Domino’s is considered a “place of public accommodation” under the ADA, and as such, is prohibited from discriminating against individuals because of their disability, and is required to provide appropriate “auxiliary aids and services” where necessary to ensure effective communication with individuals with disabilities. 42 U.S.C. § 12182(a); 28 C.F.R. § 36.303(c)(1). Put differently, the “auxiliary aids and services” requirement ensures that companies subject to the ADA have accessible electronic and information technology (such as, for example, websites that allow text-to-voice software to interface), or some other effective method to make materials available to individuals who are blind or have low vision. 28 C.F.R. § 36.303(b).
Second, the court found that Domino’s failed to provide the requisite auxiliary aids and services on its website and phone applications. The court clarified that the ADA applies to the services of a place of public accommodation, and is not limited to services in a place of public accommodation. Thus, since Domino’s website and phone application facilitated a customer’s pizza order through a physical Domino’s location, Domino’s was required to ensure that its website and phone application complied with the ADA’s mandate to be accessible to individuals who are blind or have low vision. Left untouched was the question of whether the ADA would apply to web-only businesses, which do not have a physical presence like Domino’s. See id. (stating that “[the] nexus between Domino’s website and app and physical restaurants – which Domino’s does not contest – is critical to our analysis.”).
Domino’s appealed the 9th Circuit’s decision to the Supreme Court, but the High Court declined to take up the case. This decision not to rehear Robles is an important warning for businesses that fall under the definition of a place of public accommodation. (For a full list of places of public accommodation, see 28 CFR §36.104, available here).
In the wake of Robles, if your business maintains a brick-and-mortar and also offers services online and/or through a mobile application, then you should promptly take steps to update and ensure that your company websites and phone applications have been coded to allow meaningful access for individuals who have a disability. Given the state of the case law, this is best practices at present, both to ensure that your website doesn’t inadvertently discriminate against any customers, and to avoid legal liability.
In addition, you will want to keep tabs on the district court’s ultimate judgment in the Robles case (which has now been sent back down for trial), to see if the case results in a definitive standard for minimum compliance. Currently, the law is unclear as to what minimum compliance standards are; however, many plaintiffs argue that it should be WCAG 2.0 standard, which is an industry standard that was developed by technology and accessibility experts and has been adopted by multiple federal agencies. Updating your technology to meet WCAG 2.0 standards won’t come cheap, with estimates ranging from $27,000-$50,000 for a small to medium e-Commerce store. However, such updates may be well worth their price, in light of potential penalties for an ADA violation and the accompanying legal fees and costs. Attorneys well-versed in these issues can assist both companies and customers in navigating the evolving waters of ADA compliance laws.
Michael Fleming is an associate who handles employment litigation and counseling at Dhillon Law Group Inc.