By Vince Antaki

Many of us take for granted the ability to ‘surf’ the Internet. Individuals with disabilities, especially those who are visually impaired, must rely on technology that can read aloud the information on a website; however, web reader programs can only read the information if it meets certain criteria. Several large corporations have faced legal challenges over the last decade related to website accessibility. In recent years there has been a growing trend in the number of lawsuits involving smaller businesses alleging violations of Title III of the ADA based on website accessibility. Title III prohibits discrimination against individuals with disabilities in places of public accommodation.  There is a split among federal courts whether a website is a ‘place of public accommodation.’ But the growing trend is that a website is a place of public accommodation if it offers information or items for sale to the general public.

Recently, the Supreme Court of the United States (SCOTUS) was presented with the opportunity to consider the issue of whether a website and mobile app must comply with Title III of the ADA in the case of Domino’s Pizza v. Robles.   Guillermo Robles is blind and lives in the Los Angeles area. He uses screen reading technology to navigate the Internet. When he was unable to order pizza online because Domino’s website did not comply with WCAG standards, Robles filed suit. Domino’s Pizza was granted dismissal at the trial court level on a Motion to Dismiss. Guillermo Robles appealed the decision to the Ninth Circuit Court of Appeals, which reversed, holding that Title III of the ADA applies to websites of companies that have a nexus to a physical place of public accommodation. On October 7, 2019, SCOTUS denied certiorari.

It is important to understand the implication of the denial of certiorari, as well as to appreciate the impact on your company’s website. First, SCOTUS did not directly state that the ADA applies to websites. SCOTUS merely denied certiorari, meaning it was not willing to hear the case. Given the potential implication of the appellate decision from the 9th Circuit, SCOTUS’s denial of certiorari has the effect of indirectly affirming the notion that Title III of the ADA does apply to websites. However, the more likely reason for SCOTUS to deny certiorari is because the dismissal at the trial court level took place before any development of facts. Nonetheless, it still leaves all business entities that have a presence on the Internet and that use mobile apps with uncertainty.

While the Department of Justice has issued extensive regulations regarding accessibility standards for physicals locations, it has avoided doing so for websites. Without clear guidance from the government, industry standards have been developed. The World Wide Web Consortium (W3C) develops web standards, including Web Content Accessibility Guidelines (WCAG) that makes web content accessible to people with disabilities. In fact, several federal Courts have recognized WCAG as the industry standard for compliance with the ADA. The most recent version, WCAG 2.1, was just published in June 2018. The prior version, WCAG 2.0 has been in effect since 2008. Whether you are a large business or a sole proprietorship, if you have a website intended to provide information or sell your wares to the general public, it is important to ensure that the website at least meets the standards of WCAG 2.0.

The Department of Justice has postponed the issuance of accessibility standards for websites for several years, and there has been no specific deadline set for issuing regulations. Likewise, it is unlikely that Congress will get involved.

It is necessary for all business entities to be proactive by monitoring or auditing a website periodically to ensure continued compliance. Moreover, given the state of technology, and the prevalence of mobile apps, it is just as important to ensure that any mobile app associated with your company is also compliant. In any industry it is important to make products and services available to all customers. It is also important to recognize that technology will continue to play a larger role in commerce.

Reminger would welcome the opportunity to assist you with any issues related to website accessibility by your employees or customers.  If you have any questions regarding employment practices, please call one of our Employment Practices Defense Group Members.

This has been prepared for informational purposes only. It does not contain legal advice or legal opinion and should not be relied upon for individual situations. Nothing herein creates an attorney-client relationship between the Reader and Reminger. The information in this document is subject to change and the Reader should not rely on the statements in this document without first consulting legal counsel.

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