Is Your Distributor Website ADA Compliant?

A recent ruling in a case challenging whether Domino’s Pizza’s website and mobile device ordering applications (“apps”) are compliant with the 1990 Americans with Disabilities Act (“ADA”) calls into question the need for all businesses – not just distributors – to evaluate if their websites and apps are ADA compliant. In Robles v. Domino’s Pizza, LLC (“Robles”), a visually impaired man sued Domino’s claiming that even with the use of screen reading software, he could not order a custom pizza using its website or mobile application. While the California federal district court that first heard the case dismissed Robles’ claims against Domino’s, the 9th Circuit Court of Appeals (which has jurisdiction over cases in federal trial courts in several important states like California, Oregon, Washington, Montana, Nevada and Arizona) reversed the decision, finding that Domino’s website and app facilitate access to the goods and services of a place of public accommodation – Domino’s physical restaurants. The case was sent back (in legal parlance remanded) to the district court to determine through discovery whether the website and app provide the visually impaired with accessibility required by the ADA’s mandates.

iStockThis is not the first case filed regarding the accessibility issue; in fact, thousands of law suits have been filed in the past decade challenging the accessibility of business websites, including Domino’s and Hooters, retailers Winn-Dixie and CVS Pharmacies, streaming services like Hulu and even high-profile universities. Robles, however, is significant, as Domino’s appealed the 9th Circuit’s ruling to the United States Supreme Court, which on Oct. 7, 2019, declined to hear the appeal, thereby effectively affirming the appellate court opinion and leaving Domino’s in the hands of the trial court to determine whether its website and app violate the ADA. At issue in the district court is the functionality of the website and app, which is fact specific. Should Domino’s lose, the district court may well enter injunctive relief (ordering Dominos to spend substantial sums to update its website), plus damages, attorneys’ fees, interest, costs, and other relief.

As to injunctive relief, the trial court could well order Domino’s to become compliant with the ADA by adopting the Web Content Accessibility Guidelines (WCAG), which are website protocols that have been developed by independent individuals and organizations around the world, with a goal of providing a single shared standard for web content accessibility. These guidelines define how to make website content more accessible to people with disabilities, such as visual, auditory, physical, speech, cognitive, language, learning and neurological inabilities. However, implementing WCAG does not necessarily satisfy the ADA (or other applicable laws).

Two aspects of ADA website accessibility compliance are particularly noteworthy. First, not all websites (or apps) are necessarily covered by the ADA. It applies only where the inaccessibility impedes access to goods and services of a physical location to which ADA coverage applies (at least in the private sector). In Robles, the 9th Circuit referred to this as “nexus,” which was the court’s term to describe the necessary relationship between a business’ physical facilities and its on-line access. Because certain regulations interpreting the ADA provide that a public accommodation furnish appropriate auxiliary aids and service where necessary to ensure effective communication with individuals with disabilities, and the Domino’s website and app were two of the primary (and heavily advertised) means of ordering products to be picked up at or delivered by a Domino’s restaurant, “nexus” was “critical” to the 9th Circuit’s ADA coverage analysis.

Second, even if there is nexus between a business’ physical location and its internet presence, and ADA compliance is thus mandated, there is no bright-line test to ensure ADA compliance. The 9th Circuit in Robles specifically held that discovery was required to determine whether Domino’s website and app provide the visually impaired with effective communication and full and equal enjoyment of its products and services. As such, while at least one district court has found that conformity with the WCAG establishes ADA compliance (a case against Wynn-Dixie in federal court in Florida), there are no official guidelines addressing the accessibility of websites or apps. Accordingly, website accessibility cases can get messy in the trenches. Distributors (and all businesses):

• Should assess whether they have an ADA covered website or mobile device application, so that appropriate steps can be taken to ensure legal compliance. This ties directly into whether there is nexus as described by the 9th Circuit.
• Understand that if accessibility is necessary under the circumstances, the WCAG is not a safe-harbor for businesses. While practically speaking any ADA-covered website that is not at a minimum WCAG compliant is at risk of attack, other options exist, all of which can cost substantial amounts to implement depending on the circumstances.
  
• Ensure they consider other laws besides the ADA that may apply depending on the scope and nature of the website. Many states have disability laws that provide additional requirements than that of the ADA and there are international laws or treaties that could impact a business’ internet presence as well, such as the European Accessibility Act and the Canadian Human Rights Act.

Ultimately, business owners should conduct regular audits of their website and any mobile device applications, to ensure compliance with the ADA (and other applicable laws).  At a minimum, in the wake of Robles, WCAG compliance is highly recommended (including because it has been relied on by federal district courts Mendelsohnin resolving by consent decrees cases that involve the United States). Regardless, all businesses should consider accessibility website audits imperative; and be willing to make website changes depending on the audit results. Experienced counsel in this regard can of course be of significant help, but the key is to ensure accessibility if your business’ internet presence has sufficient nexus with the business’ physical facilities to warrant the implementation of WCAG or other, similar protocols.

Distributors with questions about this topic or other matters are encouraged to contact Fred Mendelsohn at [email protected] or 312-840-7004.