9TH Circuit Court of Appeals Rules in Favor of ADA
By John M. Williams
Earlier this year, the Ninth Circuit Court of Appeals (a United Stated federal appeals court) issued an opinion in a web and mobile accessibility case against Domino's Pizza. The court held that the Americans with Disabilities Act covers websites and mobile applications.
A lower court had thrown the Domino's case out of court because there are no regulations under the ADA specifically requiring private organizations serving the public to make their digital properties accessible. The appeals court reversed, saying regulations are not needed because the ADA itself covers Domino's website and mobile application. The case will stay in court.
The three panel judges reversed the district court’s dismissal of an action under Title III of the Americans with Disabilities Act and California’s Unruh Civil Rights Act, alleging that Domino’s Pizza’s website and mobile application were not fully accessible to a blind or visually impaired person.
Plaintiff Guillermo Robles, a blind man, appeals from the district court’s dismissal of his complaint alleging violations of the Americans with Disabilities Act, , and California’s Unruh Civil Rights Act (UCRA), California Civil Rights Act. Robles alleged that the defendant Domino’s Pizza, LLC, (Domino’s) failed to design, construct, maintain, and operate its website and mobile application (app) to be fully accessible to him.
Robles accesses the internet using screen-reading software, which vocalizes visual information on websites. Domino’s operates a website and app that allows customers to order pizzas and other products for at-home delivery or in-store pickup, and receive exclusive discounts. On at least two occasions, Robles unsuccessfully attempted to order online a customized pizza from a nearby Domino’s. Robles contends that he could not order the pizza because Domino’s failed to design its website and app so his software could read them.
In September 2016, Robles filed this suit seeking damages and injunctive relief based on Domino’s failure to “design, construct, maintain, and operate its [website and app] to be fully accessible to and independently usable by Mr. Robles and other blind or visually-impaired people,” in violation of the ADA and UCRA. Robles sought a “permanent injunction requiring Defendant to . . . comply
The panel held that the ADA applied to Domino’s website and app because the Act mandates that places of public accommodation, like Domino’s, provide auxiliary aids and services to make visual materials available to individuals who are blind. Even though customers primarily accessed the website and app away from Domino’s physical restaurants, the panel stated that the ADA applies to the services of a public accommodation, not services in a place of public accommodation.
The panel stated that the website and app connected customers to the goods and services of Domino’s physical restaurants and that imposing liability on Domino’s under the ADA would not violate the company’s Fourteenth Amendment right to due process. The panel held that the statute was not impermissibly vague, and Domino’s had received fair notice that its website and app must comply with the ADA. Further, the plaintiff did not seek to impose liability on Domino’s for failure to comply with the Web Content Accessibility Guidelines 2.0, private industry.
DOJ regulations require that a public accommodation “furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities. DOJ defines “auxiliary aids and services” to include “accessible electronic and information technology” or “other effective methods of making visually delivered materials available to individuals who are blind or have low vision.”
Therefore, 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. 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. To limit the ADA to discrimination in the provision of services occurring on the premises of a public accommodation would contradict the plain language of the statute.”
The judges rejected Domino’s argument that the absence of regulations specifically requiring web accessibility or referencing the Web Content Accessibility Guidelines doomed the case. As the appellate judges explained, the case was not about whether Domino’s did not comply with WCAG, even though the lower court could later order the company to meet WCAG 2.0:
Robles did not seek to impose liability based on Domino’s failure to comply with WCAG 2.0. Rather, Robles merely argues that the district court can order compliance with WCAG 2.0 as an equitable remedy if, after discovery, the website and app fail to satisfy the ADA. Court Domino’s Pizza Ninth Circuit Opinion
The case has returned to the lower federal court in California. As the appellate judges concluded, “We leave it to the district court, after discovery, to decide in the first instance whether Domino’s website and app provide the blind with effective communication and full and equal enjoyment of its products and services as the ADA mandates.
And in any case, our precedent is clear that, “as a general matter, the lack of specific regulations cannot eliminate a statutory obligation.” City of Lomita, 766 F.3d at 1102; see also Gorecki, 2017 WL 2957736, at *4 (“The lack of specific regulations [regarding website accessibility] does not eliminate [defendant’s] obligation to comply with the ADA or excuse its failure to comply with the mandates of the ADA.”).
We express no opinion about whether Domino’s website or app comply with the ADA. We leave it to the district court, after discovery, to decide in the first instance whether Domino’s website and app provide the blind with effective communication and full and equal enjoyment of its products and services as the ADA mandates.