Ninth Circuit Has No Due Process Concerns About ADA Compliance

Advertising Law

The U.S. Court of Appeals, Ninth Circuit became the latest court to apply the Americans with Disabilities Act (ADA) to website and mobile app accessibility, reversing dismissal of a suit against Domino’s Pizza.

Guillermo Robles sued Domino’s in September 2016 after he was unable to use either the company’s website or its app to order a customized pizza. Domino’s moved to dismiss.

Domino’s contended that its website and mobile app were not “place[s] of public accommodation” subject to the requirements of the ADA, and that being held liable without the benefit of concrete compliance guidelines violated the company’s right of due process. The Department of Justice (DOJ), despite promising to conduct rule-making on the issue, had not promulgated any accessibility compliance standards, Domino’s told the court.

Although the court held that the ADA did apply to Domino’s website and app, it agreed that imposing version 2.0 of the Web Content Accessibility Guidelines (WCAG) as a standard (as suggested by the plaintiff) on Domino’s “fl[ew] in the face of due process”.

Robles appealed. The Ninth Circuit agreed with the district court that the ADA applies with equal force to websites and mobile apps. It reversed the dismissal of the suit and found no due process violations.

With respect to the website and app, the court said that the ADA “expressly provides that a place of public accommodation, like Domino’s, engages in unlawful discrimination if it fails to ‘take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids or services,’” the federal appellate panel explained. And the phrase “auxiliary aids or services” has been defined by the DOJ to include “accessible electronic and information technology” or “other effective methods of making visually delivered materials available to individuals who are blind or have low vision.”

“Therefore, the ADA mandates that places of public accommodation, like Domino’s provide auxiliary aids and services to make visual materials available to individuals who are blind,” the court wrote. “This requirement applies to Domino’s website and app, even though customers predominantly access them away from the physical restaurant.”

The alleged inaccessibility of Domino’s website and app impedes access to the goods and services of its physical pizza franchises, the panel said, which are places of public accommodation. Customers use the website and app to locate a nearby restaurant and order pizzas for at-home delivery or in-store pickup. “This nexus between Domino’s website and app and physical restaurants—which Domino’s does not contest—is critical to our analysis,” the court emphasized.

The panel cited similar decisions from federal courts in California and Florida.

Turning to the question of due process, the Ninth Circuit parted ways with the district court. Domino’s has known since the ADA became law in 1990 that it must provide full and equal access to people with disabilities, with the DOJ indicating as early as 1996 that the statute applies to websites.

The panel also noted that Robles was not seeking to impose liability based on the WCAG 2.0, but merely argued that the district court could order compliance with the standards as an equitable remedy if, after discovery, the website and app fail to satisfy the ADA. At the current stage of litigation, the plaintiff was seeking to impose liability on Domino’s only for failing to comply with the ADA itself.

As for the lack of specific regulations on website accessibility, the court said the defendant was overstating its due process rights. “While we understand why Domino’s wants DOJ to issue specific guidelines for website and app accessibility, the Constitution only requires that Domino’s receive fair notice of its legal duties, not a blueprint for compliance with its statutory obligations,” the court wrote.

However, the court noted that the lack of specific instructions from the DOJ might serve a beneficial purpose and offer flexibility to businesses in their efforts to comply with the ADA.

“[W]e conclude that the district court erred in holding that imposing liability in this case would violate Domino’s due process rights,” the Ninth Circuit wrote. “Domino’s has received fair notice that its website and app must provide effective communication and facilitate ‘full and equal enjoyment’ of Domino’s goods and services to its customers who are disabled. Our Constitution does not require that Congress or DOJ spell out exactly how Domino’s should fulfill this obligation.”

To read the opinion in Robles v. Domino’s Pizza, LLC, click here.

Why it matters: The decision makes the Ninth Circuit the first federal appellate panel to hold that the ADA applies with equal force to websites and apps where their accessibility impedes access to the goods and services of the physical location (the court highlighted the nexus between Domino’s mobile app and website and physical restaurants). The court also ruled that the lack of specific regulations cannot eliminate a statutory obligation, which puts businesses on notice that they must achieve compliance with the ADA or face similar litigation.



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