Uncertainty Persists in Web Accessibility and ADA

Companies’ hopes the U.S. Supreme Court would soon shed some light on website accessibility, and perhaps help curb lawsuits in that area, were recently dashed.

On Oct. 7, the Supreme Court announced it would not hear a case to decide how, if at all, the Americans with Disabilities Act’s accessibility protections apply to a website. 

In the case, Domino’s Pizza petitioned for writ of certiorari after its setback at the 9th Circuit Court of Appeals, which ruled that the pizza franchise’s app and website counted as “places of public accommodation” under the ADA.

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With the Supreme Court remaining silent on the issue for the foreseeable future, companies might continue to see an influx of ADA lawsuits over their websites without predictability in how the courts will handle them.

Domino’s Pizza is one of numerous U.S. businesses facing lawsuits alleging that their websites or apps are inaccessible to people with disabilities. Plaintiffs claim these digital storefronts are places of public accommodation under Title III of the ADA. Just as physical retail stores and restaurants must follow wheelchair accessibility guidelines, for example, websites must be usable for vision-impaired people assisted by screen readers, plaintiffs and disability advocates say.

But the ADA doesn’t mention websites or the internet, and its applicability has been a matter of interpretation by courts handling the thousands of Title III lawsuits involving websites. According to Seyfarth Shaw’s tracking, at least 2,258 of these lawsuits were filed last year — nearly triple the number of filings in 2017.

According to Domino’s petition for writ of certiorari, “plaintiffs have pursued restaurants, retailers, grocery stores, car dealerships, hotels, banks, exercise studios, and universities” in website accessibility lawsuits.

In the Domino’s case, Guillermo Robles, who is blind, claims he was unable to order a pizza through the Domino’s website or app. 

The 9th Circuit deepened a circuit split by ruling the franchise’s site and app are effectively public accommodations that must be accessible to people with disabilities.

Christine Samsel, a shareholder at Brownstein Hyatt Farber Schreck, said there are three schools of thought regarding the ADA and website accessibility: one is that websites are always ADA-covered, another is they’re never covered, and then there’s the “nexus view,” where a website violates the ADA if its inaccessibility has a nexus to the products and services of a physical location.

The 1st, 2nd and 7th circuits determined the ADA can apply to a website regardless of any connection to a brick-and-mortar location. The 3rd, 6th and 11th circuits have adopted the nexus requirement.

“You would think that with the disparity among circuits this would have been ripe for consideration,” Samsel said, adding that the Supreme Court’s decision not to take up the 9th Circuit’s Domino’s Pizza case is “disappointing.”

Samsel and her team have authored amicus briefs in federal appellate cases involving credit unions’ websites. Those website accessibility cases have an extra wrinkle in terms of plaintiff standing, Samsel said: plaintiffs claim the businesses’ websites prevent them from accessing their services when they aren’t even eligible to become members of the credit union.

Outside the Judicial Branch, businesses and disability advocates once looked to the Department of Justice for guidance. Nearly a decade ago, the DOJ discussed plans to issue regulations on website accessibility under Title III, only to scrap those plans in December 2017. 

The DOJ has since insisted the ADA applies to websites, but it hasn’t articulated what standard websites should follow to determine ADA-compliant accessibility. It notably declined to endorse the Website Content Accessibility Guidelines, or WCAG, as a legal standard.

The lack of guidelines from the Supreme Court and the DOJ have “left courts, and primarily plaintiffs’ lawyers, with a void to fill,” Samsel said, adding that lawyers “jumped into this gap with both feet” by filing lawsuits.

Federal courts in New York and Florida saw the lion’s share of Title III website accessibility lawsuit filings in 2018. But the litigation is growing everywhere, Samsel said, particularly in California where she practices in addition to Colorado. In California, plaintiffs are claiming inaccessible websites violate the state’s Unruh Civil Rights Act, which entitles plaintiffs to damages.

Aside from whether Title III applies to a website, there’s the question of what makes the site ADA compliant. The most widely used accessibility standards are listed under WCAG 2.1, but the guidelines are a moving target, Samsel said, having received their latest update last year. 

Whether WCAG 2.1 is a valid standard for accessibility, and whether the site is close enough in meeting that standard, “depends on the individual judge” on a case, she added.

As to whether the Supreme Court’s silence will trigger an explosion of website accessibility lawsuits, Samsel said, “From my position that ship has already sailed.”

Often, plaintiff lawyers will push for a quick settlement, which can still be risky for the business, Samsel said. Settling with one plaintiff doesn’t protect the business from lawsuits by other plaintiffs, who could sue them the next day for the same violations while they try to update the website for accessibility.

Simpler websites can be cheap fixes, but companies with complex sites and apps may spend tens of thousands of dollars to make them accessible.

The issue isn’t that companies don’t want to have accessible websites and apps, Samsel said, seeing that “it’s good business to be accessible.” 

The problem, she added, is a lack of clear guidance and sometimes training for web designers. “What companies are really looking for is, what do we need to do, and how do we do that?”

— Doug Chartier

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