Better move up to the front of the stove those website and mobile apps accessibility projects you left simmering on the backburner.
Know why? Your chances of losing a lawsuit brought by a disabled person harmed due to website and mobile apps accessibility problems just went up a notch.
But you need worry only if your online properties serve as extensions of a physical enterprise. Also if your physical enterprise operates in the western U.S.
For this you can thank the U.S. Ninth Circuit Court of Appeals. On January 15, it handed down a ruling in favor of a blind man from Los Angeles who sued the Domino’s Pizza chain.
The plaintiff—Guillermo Robles—alleged at trial in 2016 that Domino’s violated the Americans with Disabilities Act (ADA) of 1990 by not providing website and mobile apps accessibility.
The ADA requires businesses deemed a “public accommodation” to be accessible by the handicapped. Under the ADA, this includes just about any business open to the public. Like, for instance, a Domino’s restaurant.
How the Lawsuit Started
The lawsuit came about after Robles found himself prevented from accessing Domino’s online to place a pizza order. He blamed website and mobile apps accessibility issues.
Normally, vision-deprived Robles transacts business via the internet with the assistance of a screen-reading device.
But screen readers work only if their software integrates with the website or mobile app. And that happens only if the website and mobile apps owners take steps to ensure compatibility with the visitors’ equipment.
Domino’s neglected to do so, Robles alleged.
As a result, nothing but silence greeted Robles when he showed up to use Domino’s online pizza-builder tool.
He went away empty-handed and disappointed—not to mention hurt and angry. Robles responded with an action filed in the federal district court just outside Los Angeles.
Website and Mobile Apps Accessibility Defense
Robles came to court armed with some pretty strong arguments. However, Domino’s trumped them all by pinning the blame for Robles’ troubles on the federal government.
Basically, Domino’s said its hands were tied when it came to website and mobile apps accessibility. The company explained that the U.S. Department of Justice (DoJ) promised long ago to supply accessibility complance guidelines. But the DoJ never did.
Domino’s asserted this lack of DoJ guidelines and tech support legitimately prevented the company from addressing website and mobile app accessibility.
Consequently, Domino’s bore no responsibility for Robles’ harm.
Not so, said Robles in response. He pointed to accessibility guidelines devised by the World Wide Web Consortium (W3C) and argued that Domino’s could have instead used those. The W3C’s Web Content Accessibility Guidelines offered the advantage of ready availability, he argued. Moreover, the U.S. government employed them extensively.
But, in the end, the district court judge agreed with Domino’s on the guidelines argument.
Plaintiff Fought On
The judge even labeled declaring the company liable in the absence of government-drafted ADA-compliance guidelines a violation of Domino’s constitutional due process rights.
To avoid a due-process breach, the judge dismissed the case against Domino’s.
However, Robles fought on. He appealed the dismissal to the Ninth Circuit, which heard oral arguments in the case just a few months ago.
Upshot: a three-judge panel reversed the dismissal and sent the case back to the lower court. This time, though, a 25-page appellate opinion will guide the trial judge’s decision-making.
Speaking of which, that opinion holds sway only in the federal district courts of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, Guam, and the Northern Mariana Islands. But federal courts outside those locations can if they want draw on its reasoning in deciding website and mobile apps accessibility cases of their own.
Yes, It’s a Public Accommodation If…
The appeals court’s opinion held the following:
- No specific guidelines from the government? No excuse, Domino’s.
- W3C’s Web Content Accessibility Guidelines would have made a fine stand-in for what the government failed to provide.
- Due process rights guarantee that persons and companies receive fair notice of actions planned against them. These rights also guarantee an opportunity for the targets of those actions to tell their side of the story. Due process rights do not guarantee receipt of instructions for how to fulfill a legal duty.
In reaching its decision, the appellate panel addressed what it considered the case’s overarching question. Under the ADA, do websites and mobile apps that support places of public accommodation become a place of public accommodation themselves?
Short answer: yes.
The panel reasoned that, since Domino’s website and mobile apps allow the general public to engage in many of the same business actions possible while physically visiting a Domino’s restaurant, those online properties qualify as extensions of the brick-and-mortar operation.
Therefore, the ADA’s requirements for accessibility apply as much to the online extensions as to the physical restaurant, the panel held.
As for violating Domino’s due process rights? The panel said the DoJ’s promise to provide guidelines and technical support served as fair notice years ago that the DoJ views online extensions as public accommodations.
Robles Could Still Lose
Domino’s lost at the appellate level, but might yet win again at trial.
Observers say the panel’s opinion offers Domino’s a couple of lines of defense that just might carry the day.
First, Domino’s could argue that its website gives the blind like Robles an alternative way to order pizza without use of a screen reader. Robles need only dial the supplied customer-service telephone number that appears on the homepage.
Of course, that defense works only if the customer-service number is sounded out in an audio clip or video that autoplays as soon as the blind visitor lands on the page.
Second, Domino’s could argue that its website and mobile apps exist not mainly to sell pizzas but to instead educate the public about the pizza choices the restaurant offers. That defense is possible because the appeals court was silent as to how much inaccessibility users needed to encounter before it could be said an ADA violation occurred.
More of This Ahead
A case similar to this is currently before the U.S. 11th Circuit Court of Appeals. In the second case, the Winn-Dixie supermarket chain seeks a reversal of the trial-court loss it suffered at the hands of a different blind man who found the grocery giant’s website inaccessible.
The lawyer for the plaintiff in the Domino’s case said in interviews that he expects in the years ahead to see lots more cases along these same lines.
You might even recall that Valet warned about this sort of development a while ago.
If you have questions about accessibility and about how to make it work most advantageously for you, please feel welcome to reach out to us. We’d love to be of help.
And be sure to ask about scheduling a Valet ADA Compliance Consulting assessment of your website’s accessibility health. It’s an essential first step in planning your journey to success with accessibility.
IMPORANT: Nothing in this post is intended to be offered as—nor is it—legal advice or counsel. If you’re concerned about your accessibility status or risks under the law, we urge you to consult your lawyer.