United States: Domino Effect: Will SCOTUS Refusal To Hear ADA Website Case Yield Flood Of Litigation?

Last Updated: October 21 2019
Article by David O. Klein

On October 7, 2019, the United States Supreme Court denied a petition for a writ of certiorari in the matter of Domino's Pizza LLC v. Robles. This case involves an Americans with Disabilities Act ("ADA") claim in which Mr. Guillermo Robles, a blind man, filed a lawsuit against Domino's Pizza LLC ("Domino's") because its website and mobile application ("app") was inaccessible to him via his screen-reader software. The ADA website accessibility case is now expected to proceed to trial.

What is the Significance of the Supreme Court's Denial for Other ADA Website Accessibility Cases?

ADA Website Accessibility Compliance at the Center of the Controversy

The ADA is intended to "provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities." While the ADA has established standards for brick-and-mortar organizations for more than 25 years, it has not yet been uniformly interpreted to apply to websites/apps. Pursuant to Title III of the ADA:

  • No person "shall be discriminated against on the basis of disability in the full and equal enjoyment of goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation . . . ."
  • These places of "public accommodation" include businesses and non-profits that provide goods and services to the public, such as a restaurants and supermarkets.
  • The US Department of Justice requires that a place of public accommodation, "furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities."
  • "Auxiliary aids and services" 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."

Ninth Circuit's ADA Website Decision in the Underlying Case

In January 2019, the Ninth Circuit Court of Appeals issued a decision in Domino's Pizza, LLC v. Robles. As background, Mr. Robles accessed the Internet by means of screen-reading software which "vocalizes visual information on websites." On at least two occasions, Mr. Robles was unable to order pizza using the Domino's website/app because Domino's had failed to design its website/app so that screen-readings software could read and vocalize its contents. In the proceedings before the Ninth Circuit, Domino's argued that the ADA did not apply to Domino's online offerings. The Ninth Circuit disagreed.

The Ninth Circuit ruled that "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." Furthermore, the Ninth Circuit found that the ADA applies to "the services of a place of public accommodation, not services in a place of public accommodation."

However, the Ninth Circuit went on to limit the scope of the ADA's application to websites by requiring that the website/app have a nexus with the place of public accommodation. In the case of Domino's, the website/app provided a way for customers to access the physical Domino's restaurants for delivery and pickup. Thus, the Ninth Circuit held that the ADA applied to the Domino's website/app because of this nexus between the website/app and physical Domino's stores.

Will the Supreme Court's Action Lead to Increased ADA Website Litigation?

Following the Ninth Circuit's decision, Domino's petitioned for a writ of certiorari from the United States Supreme Court. If granted, the Supreme Court would have had the opportunity to weigh in on whether, and under what circumstances, the ADA applies to websites/apps and to settle a split on the issue among circuit courts. Domino's said in a statement that a nationwide standard would have "eliminate[d] the tsunami of website accessibility litigation that has been filed by plaintiffs' lawyers exploiting the absence of a standard for their own benefit." In denying the petition for certiorari, without comment, the Ninth Circuit's decision will stand. The case is now expected to proceed to trial.

It is important to note that the Supreme Court's failure to act should not be misunderstood to signal that the Court approves of the Ninth Circuit decision. The denial to hear the case means that no binding precedent is created by the denial itself, and the lower court's decision should be treated as mandatory authority only within the Ninth Circuit (although some will certainly point to the decision as at least persuasive authority with respect to the other circuit courts in the Country).

Notwithstanding the foregoing, given the sheer number of businesses and organizations that qualify as places of public accommodation in the Ninth Circuit (of which the State of California is included), the Court's denial has potentially far reaching effects. At present, there are countless businesses in the Ninth Circuit that qualify as places of public accommodation, the vast majority of which operate websites related to their businesses. As such, this certiorari denial will likely embolden the plaintiff's bar to file suit against websites and companies in the Ninth Circuit and elsewhere on a much larger scale. While some previous court decisions have worked to limit the jurisdiction and scale of ADA website litigation – for example, a California state court ruled in 2018 that visiting a non-ADA compliant website multiple times would only constitute a single offense – a consensus has yet to emerge regarding the parameters of liability for ADA website accessibility cases.

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