SCOTUS has spoken, sort of. On October 7, 2019, SCOTUS denied Domino's Pizza LLC's request that the Supreme Court review the Ninth Circuit's determination that Domino's website or mobile phone application needed to comply with Title III of the Americans With Disabilities Act ("ADA"). The denial effectively answers – in the affirmative - the oft-asked question of whether Title III of the ADA requires a website or mobile-phone application that offers goods or services to the public to be accessible to individuals with disabilities, usually sight-related disabilities.
The Ninth Circuit's decision held that Title III of the ADA applies to websites with a nexus to a physical place of public accommodation. The decision also held that imposing liability on businesses for not having an accessible websites does not violate the due process rights of such public accommodations even though accessibility regulations do not exist to govern such determinations.
SCOTUS's decision, while likely disappointing to businesses, is not surprising and, in reality, doesn't change very much. The Ninth Circuit's analysis was premised on the idea that the alleged inaccessibility of Domino's website and app impeded access to the goods and services of its physical pizza franchises—which are places of public accommodation. The Ninth Circuit stated that, "this nexus between Domino's website and app and physical restaurants—which Domino's does not contest—is critical to our analysis." It was the circuit split concerning the idea of the nexus – or lack thereof - between the website and the affiliated physical place of business that was used to justify the appeal to the Supreme Court.
The District Courts in New York have seemingly not grappled with the nexus issue, holding, without limitation, that websites that offer goods and services to the public are "places of public accommodation" and are thus subject to the Americans With Disabilities Act (ADA) and must be made accessible to the disabled. Thus, businesses under the jurisdiction of the Southern and Eastern Districts of New York are still at risk for ADA website litigation, regardless of their nexus to a physical public accommodation.
Our key takeaways concerning web accessibility thus remain the same: businesses should review their websites with respect to accessibility for the disabled and particularly explore access options for the visually impaired guided by the WCAG.
Please feel free to contact your Pryor Cashman attorney with any questions.
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