The Bottom Line for Business Owners

  • The Ninth Circuit Court of Appeals recently affirmed that the ADA applies to many business websites. Robles v. Domino’s Pizza, LLC, 913 F.3d 898. (9th Cir. 2019).
  • Business owners with non-accommodating websites will likely face an increased risk of website accessibility lawsuits.
  • Business owners should make reasonable efforts to accommodate customers with disabilities who use their websites and apps, before they become targets.

The Ninth Circuit Holding

In Robles v. Domino’s Pizza, LLC, the plaintiff, who was blind and used screen-reading software, brought a lawsuit under the Americans with Disabilities Act (ADA), and California’s Unruh Civil Rights Act (UCRA) against Domino’s Pizza, alleging that the Domino’s website and app were not designed to be read by his software, and that he was unable to use the website or app to place his order.

The Court affirmed that the ADA applies to Domino’s website and app.  The Court first explained Domino’s is a place of public accommodation, which is subject to the ADA, and that such places may be found to engage in unlawful discrimination if someone with a disability is “excluded, denied service, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services.”  Robles, 913 F.3d at 904.

The Court further explained that the ADA applies to the services “of a place of public accommodation,” as opposed to “in a place of public accommodation” meaning that the ADA is not limited to the physical place itself, but also to extensions of that place such as websites and mobile apps.  Robles, 913 F.3d at 905. In this case, Domino’s had a physical place, open to the public, where it sold its goods and was therefore a public accommodation under the ADA.  The Domino’s website and app are extensions of Domino’s public physical place as they connect customers to the good and services of Domino’s physical restaurants. Consequently, the website and app also needed to comply with the ADA.

The Ninth Circuit decision rejected a number of procedural defenses by Domino’s and sent the case back to the District Court to determine whether the Domino’s website and app complied with the ADA. The Court did provide any guidance as to what specific steps or accommodation were appropriate for a website and app to be found compliant with the ADA.

Potential Consequences for Businesses

  • Business owners are already accustomed to making accommodations for those with disabilities at their physical business, such as building ramps, having designated handicap parking, enlarging toilet stalls, and many other aides and services to accommodate those with disabilities. The Robles ruling affirms that such efforts to comply with the ADA must extend to the websites and applications that connect the customer to the good or services.
  • Businesses that do not have compliant websites face the risk and costs of lawsuit under the ADA or state laws.  Under the ADA, plaintiffs are not entitled to damages, however a business owner could face attorney’s fees, the cost of injunctive remedy, and of course their own litigation costs and opportunity cost of any business disruption or distraction.   In California, under the Unruh Act, there is a statutory damage of $4,000 per offense, which might be mitigated if repairs are made.
  • Frequently businesses end up settling ADA cases, as the cost of settlement may be less than protracted litigation.  Nonetheless, businesses can minimize the target on their backs by upgrading the accessibility on their websites and apps.

Steps For Business Owners To Consider Taking

It is still unclear exactly which steps a business must take, as the Court did not dictate what specific steps would be sufficient to satisfy the ADA.  However, the industry has published some steps worth considering through the Web Content Accessibility Guidelines 2.0 (“WCAG”), which several federal agencies have adopted, and some courts have incorporated into settlement agreements.

The WCAG promote four principles for websites to follow:

  • Websites are perceivable. Information is available to users in ways that they can perceive, such as having text alternatives for non-text content.
  • Websites are operable. Businesses should ensure that all website functionality can be performed through keyboard interface and can be presented in different ways without losing information or structure.
  • Websites are understandable. Websites should be clear, readable, and functional predictably.
  • Websites are robust. Robust enough to be interpreted by a wide variety of user agents and assistive technologies.

Actual steps your businesses could take to conform your web site to these principles might include the following:

  • Review the Web Content Accessibility Guidelines 2.0.
  • Audit your site using a WAVE Web Accessibility Tool, such as Google’s WAVE Tool.
  • Ensure that the site can be read using screen reading software.
  • Include descriptive tags on all images.
  • Check the site to make sure that text is legible, readable, and understandable.
  • Make sure that buttons have sufficient contrast to be noticed and are placed in predictable locations.
  • If your site uses WordPress, install a widget that will add accessibility features to your site.
  • Engage an ADA knowledgeable programmer to update your site. Have your law firm hire the programmer and manage the process in order to preserve potential claims of privilege.

Following these steps might not bullet proof a business’s website from facing litigation under the ADA. However, these steps could mitigate the exposure in the event that such a suit arises and make your business a less likely target than a business that has not taken any steps at all.


Tags: Litigation, ADA,