ADA in Action

The DOJ has yet to issue a final rule regarding web access as it relates to the ADA. On June 20, 2018, members of Congress wrote to then-Attorney General Jeff Sessions to request that the DOJ provide guidance and clarity with regard to website accessibility under the ADA. In a letter addressed to U.S. House Representative Ted Budd on September 25, 2018, Assistant Attorney General Stephen E. Boyd responded by indicating that the ADA certainly does apply to websites and that:

Additionally, the Department has consistently taken the position that the absence of a specific regulation does not serve as a basis for noncompliance with a statute’s requirements. Absent the adoption of specific technical requirements for websites through rulemaking, public accommodations have flexibility in how to comply with the ADA’s general requirements of nondiscrimination and effective communication. Accordingly, noncompliance with a voluntary technical standard for website accessibility does not necessarily indicate noncompliance with the ADA.

This reference to “voluntary technical standard” has been widely understood to be referring to WCAG 2.0 Guidelines. This letter indicates that WCAG is not the baseline in the eyes of the DOJ; however, it may be the best we have at this point in the absence of regulations.

The DOJ has reached multiple settlement agreements and consent decrees over inaccessible website content whereby it stipulated that the defendant businesses (Peapod and H&R Block) had to, at a minimum, comply with WCAG 2.0 A. This is a good sign that it remains a safe standard to follow.

Here are some recent cases:

Carroll v. ABNB Federal Credit Union ED Virginia, March, 2018

A man with visual impairments claimed the Credit Union’s website wasn’t accessible due to “linked images missing alternative text, empty links, redundant links, and empty or missing form labels,” and that, because of the access barriers, he was unable to get to the branch locations. However, this case ended with a motion to dismiss with leave to amend, as the man wasn’t within the area that the credit union services and therefore didn’t have standing.

Gil v. Winn Dixie Stores, Inc. 242 F. Supp. 3d 1315 (S.D. Fla. 2017)

In this case, a blind man who also suffers from a learning disability, and has to use screen reader software, sued the Winn Dixie grocery store and pharmacy chain, claiming the website is inaccessible to the visually impaired.

Winn-Dixie argued its website wasn’t a place of public accommodation, but the court rejected this, holding that “Winn-Dixie’s website is heavily integrated with, and in many ways operates as a gateway to, Winn-Dixie’s physical store locations. The website’s alleged inaccessibility therefore denies the Plaintiff equal access to the services, privileges, and advantages of Winn-Dixie’s physical stores and pharmacies.”

The court denied Winn Dixie’s motion for judgment on the pleadings, allowing the case to continue.

Markett v. Five Guys Enterprises, SD New York July 21, 2017

A woman who is legally blind filed suit on behalf of a nationwide similarly-situated class, claiming she was unable to operate Five Guys’ website to buy a cheeseburger with toppings.

Five Guys argued that the woman could not establish “that the website is in violation of any established regulations implementing Title III” and that they are “currently in the process of completing a large-scale website renovation effort that will result in its website being accessible to plaintiff and other blind and visually impaired individuals.”

The court disagreed denied Five Guys’ motion to dismiss the case. It held that, while there are no regulations in place, plaintiffs could maintain their claims under the standard set forth in the ADA that “[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation,” 42 U.S.C. § 12182(a).

Robles v. Domino’s Pizza LLC CD California March 20, 2017

Similar to the Five Guys’ case, the plaintiff here is a blind man bringing a suit on behalf of a class of blind and visually-impaired individuals. In it, he alleges very specific deficiencies rendering Domino’s website noncompliant:

  1. does not permit a user to complete purchases using a particular screen-reading software program, Job Access With Speech ("JAWS") (Compl. ¶¶ 18, 27-29),
  2. The plaintiff also contends Domino’s mobile app does not permit him to access the menus and applications on his iPhone using the iPhone's "VoiceOver" software program (Compl. ¶¶ 30-33),
  3. The plaintiff also alleges neither nor the mobile app are in compliance with WCAG 2.0 Guidelines, and
  4. He further alleges that "simple compliance with the WCAG 2.0 Guidelines would provide Plaintiff and other visually-impaired consumers with equal access" to these access portals (Compl. ¶ 36).

After the lawsuit was filed, Domino’s website featured an “accessibility banner” that “direct[s] users who access the website using a screen reader with the following statement: ‘If you are using a screen reader and are having problems using this website, please call 800-234-4031 for assistance.’” The number was staffed by a live representative who could help blind or visually impaired individuals navigate the site.

However, the court held that the “[p]laintiff seeks to impose on all regulated persons and entities a requirement that they ‘compl[y] with the WCAG 2.0 Guidelines’ without specifying a particular level of success criteria and without the DOJ offering meaningful guidance on this topic. This request flies in the face of due process ,” (emphasis added).

Domino’s was granted summary judgment and all of the plaintiff’s causes of action were dismissed without prejudice “pending the resolution of an issue within the special competence of an administrative agency.”

Recently, this case was overturned after being appealed in the Ninth Circuit Court in Robles v. Domino’s Pizza, LLC, 913 F.3d 898 (9 th Cir. 2019). The key takeaways are that WCAG 2.0 is one form of compliance, but not necessarily the only one, and that the lack of specificity in compliance is not a due process violation.

Furthermore, the court held that a court “can order compliance with WCAG 2.0 as an equitable remedy if, after discovery, the website and app fail to satisfy the ADA. At this stage, Robles only seeks to impose liability on Domino's for failing to comply with § 12182 of the ADA, not for the failure to comply with a regulation or guideline of which Domino's has not received fair notice.” In other words, the court held that the fact that the regulation or guidelines aren’t completely clear did not excuse Domino’s from complying with the ADA.

The court also held that demanding compliance with vague ADA standards does not violate due process. Due process requires only notice, and “[o]ur Constitution does not require that Congress or DOJ spell out exactly how Domino's should fulfill this obligation.” Finally, the lack of “specific regulations cannot eliminate a statutory obligation.” Thus, even though there are no clear standards, companies must comply with the ADA.

Domino’s is currently appealing this decision to the Supreme Court.