Part III: Is Your Website ADA Compliant?

March 16, 2020

The Supreme Court’s Silence on Accommodations for the Visually Impaired Becoming the Potential Law of the Land

Summary of ADA Compliance Series

By Michael D’Ambrise

Part I

We examined the June 2017 Florida District Court ruling in Juan Carlos Gil v. Winn-Dixie Stores, Inc., which found in favor of a plaintiff’s claim that a grocery store’s website was in violation of Title III of the Americans with Disabilities Act (ADA) and ordered the store to bring its website into compliance with the Web Content Accessibility Guidelines (WCAG).

Part II

We turned to the increase in website accessibility claims that arose after that ruling, including a New York decision that expanded upon the applicability of the ADA to websites without a physical location.

Part III

We examine the effects of the Supreme Court’s refusal to address a circuit court’s decision against a business with an inaccessible website, allowing Title III of the ADA to apply to websites even when the US Department of Justice (DOJ) has not created guidelines on the topic.

THE ROBLES DECISION TEES UP A CHANCE FOR A NATIONWIDE ADA WEBSITE STANDARD

After the ruling in Winn-Dixie, there was a national spike in ADA website litigation with a 177% increase in federal court matters from 2017 to 2018. One matter working its way through the courts during this time was brought by Guillermo Robles. Guillermo Robles has a vision impairment and uses a screen reader to access websites and apps. Robles made attempts to use Domino’s Pizza’s website and app to place a food order using his screen reader, but it could not operate using the website and app that Domino’s provided, which prevented him from completing any orders.

Robles filed a lawsuit in the United States District Court for the Central District of California asserting an ADA violation against Domino’s for a failure to comply with the WCAG guidelines. While the court found that the ADA did apply to Domino’s website, it also held that Domino’s due process rights would be violated by the imposition of the WCAG guidelines because the federal DOJ has yet to issue guidelines on the ADA’s application to website accessibility. Therefore, the District Court dismissed the case, and Robles appealed to the Ninth Circuit.

In its decision, the Ninth Circuit agreed that Domino’s website was required to meet the standards of Title III of the ADA but found that the DOJ’s failure to issue guidance did not change Domino’s duties to abide by the WCAG standards and that its due process rights were not impaired by the imposition of the standards. Domino’s appealed the Ninth Circuit’s decision to the Supreme Court. Court watchers wondered if the Supreme Court would address the national surge in ADA website litigation.

THE SUPREME COURT’S PUNT SETS A STANDARD

The Supreme Court ultimately decided to deny certiorari in October 2019 to Domino’s writ requesting the Ninth Circuit decision be overturned, refusing to hear the case altogether. This means that at a bare minimum, the Ninth Circuit’s decision in Robles that Title III of the ADA apply to websites regardless of any DOJ guidelines, is the law of the land in much of the Western United States, an area including nine states and two territories. For the rest of the country, this means the applicable local Circuit and United States District Court decisions will continue to stand. The current decisions in New York and Florida both also extend Title III of the ADA to websites without any DOJ guidance.  For others, while it may appear that no standard has been determined in their jurisdiction, the Supreme Court’s refusal to hear an ADA website case may portend lingering uncertainty and an opening to an increase of more costly and unsettled litigation.

With the massive increase in litigation and the Ninth Circuit’s strict standard left in place by the Supreme Court, businesses with websites should ensure their compatibility with the latest guidelines to decrease their vulnerability to this type of litigation. Website accessibility claims, however, are only a portion of the overall increase in ADA lawsuits. 2018 saw 10,163 ADA Title III lawsuits filed, which is a 34% increase over 2017 and more than triple the number filed in 2013.

Companies seeking to mitigate risks presented by the threat of ADA litigation can do so with employment practices liability coverage. As the legal community monitors for similar verdicts throughout the country that could eventually set further precedents for the purview of the ADA, employers should process the effects of this decision and consider the scope of their policies to ensure that such litigation will be addressed.

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Michael P. D’Ambrise is a Vice President of Beecher Carlson’s Executive Liability Practice in New York. He has a Bachelor of Arts degree with high honors in History/Political Science and Spanish from Rutgers University and a J.D. from Fordham Law School. Michael is a member of the New York and New Jersey State Bars and the bar of the United States District Court for New Jersey. He is a former claims analyst who specializes in Executive Liability coverages. Michael can be reached at mdambrise@beechercarlson.com.

This article is intended for informational purposes only. It is not a guarantee of coverage and should not be used as a substitute for an individualized assessment of one’s need for insurance or alternative risk services. Nor should it be relied upon as legal advice, which should only be rendered by a competent attorney familiar with the facts and circumstances of a particular matter. Copyright Beecher Carlson Insurance Services, LLC. All Rights Reserved.


Sources

Gil v. Winn Dixie Stores, Inc., No. 1:2016cv23020 – Document 63 (S.D. Fla. 2017)

http://law.justia.com/cases/federal/district-courts/florida/flsdce/1:2016cv23020/488749/63/

28 CFR § 36.201(a): “No 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 private entity who owns, leases (or leases to), or operates a place of public accommodation.”

Andrews v. Blick Art Materials, LLC, 268 F. Supp. 3d 381 (E.D.N.Y 2017) Case No. 17-CV-767

https://www.gpo.gov/fdsys/granule/USCOURTS-nyed-1_17-cv-00767/USCOURTS-nyed-1_17-cv-00767-3

Number of Federal Website Accessibility Lawsuits Nearly Triple, Exceeding 2250 in 2018, Seyfarth Shaw LLP, January 31, 2019 https://www.seyfarth.com/news-insights/number-of-federal-website-accessibility-lawsuits-nearly-triple-exceeding-2250-in-2018.html

Robles v. Yum! Brands, Inc., 2:16-cv-08211, 2018 WL 566781 (C.D. Cal. Jan. 24, 2018), rev’d, Robles v. Domino’s Pizza LLC, 913 F.3d 898 (9th Cir. 2019), cert. denied; https://cases.justia.com/federal/appellate-courts/ca9/17-55504/17-55504-2019-01-15.pdf?ts=1547575304https://www.supremecourt.gov/orders/courtorders/100719zor_m648.pdf

Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington, as well as Guam and the Northern Mariana Islands

Number of ADA Title III Lawsuits Filed in 2018 Tops 10,000, Seyfarth Shaw LLP, January 22, 2019, https://www.adatitleiii.com/2019/01/number-of-ada-title-iii-lawsuits-filed-in-2018-tops-10000/