11/20/2019

Virtually Accessible

A recent Supreme Court action opens door to ADA lawsuits over website accessibility

By Sheila Fix , Andrew S. Kessler , Stephen J. Henning

It is no secret to business owners that technical violations of the Americans with Disabilities Act (ADA) may expose their businesses to lawsuits that allege physical locations are inaccessible to people with disabilities. But a U.S. Supreme Court ruling in October 2019 now leaves the door open for lawsuits challenging the accessibility of websites and mobile apps to people with disabilities.

Legal Backdrop

Guillermo Robles, a blind man, sued Domino’s Pizza, claiming that his rights under the ADA were violated when he tried to order a pizza at least twice online from a nearby Domino’s location. He says he was unable to do so because his screen-reading software could not read the website or mobile application. Domino’s fought the claim, arguing that applying the ADA to the website and mobile application was unfair, as the Department of Justice—which is charged with issuing ADA regulations—had not provided helpful guidance to businesses on how they should make their websites accessible.

While the lower court dismissed the action without prejudice, the 9th Circuit Court of Appeals ruled that the ADA applies to Domino’s website despite the absence of any specific regulations for businesses to follow, and thus allowed the claim to proceed. Domino’s then asked the Supreme Court to hear the matter, presenting the following question: “Does Title III of the ADA require a website or mobile phone application that offers goods or services to the public to satisfy discrete accessibility requirements with respect to individuals with disabilities?”

To the disappointment of business owners closely watching this case, the Supreme Court denied the petition on Oct. 7, 2019, declining to hear the matter. This does not mean the issue is settled, though. Another court of appeals could rule differently, and the Supreme Court could decide to take a look at that point. In the meantime, businesses must battle in the trenches regarding whether their websites and applications comply with the ADA.

Practical Implications

The Domino’s case has brought the issue of online accessibility back into the spotlight. Domino’s had ample support for its position at the Supreme Court level, in addition to the support of the retail and restaurant industries, which filed briefs stressing the impossibility in guessing what “accessibility” means in the online environment. The 9th Circuit tasks courts and businesses with addressing that challenge. Accordingly, it is important for proactive businesspeople to understand how persons with disabilities seek to access online services, and what steps may be taken to make websites and applications accessible to those with disabilities.

In the Domino’s case, the issue was sight as a limiting factor. Sight-impaired individuals use screen-reading software to understand and use online services. Robles used JAWS or “Job Access With Speech”—the most popular screen-reading software for Windows-based computers—to try and order from the Domino’s website. To accommodate this screen-reading software, graphics and embedded hyperlinks on websites typically include alternative text (known as “alt text”) that provides a description of an image when a cursor floats over it or when screen-reading software detects it. Robles also used his iPhone with the help of Apple’s Voice Over screen-reading program to use the Domino’s app. He claims he was unable to use either method successfully when ordering a customized pizza from a local Domino’s.

The intent of the ADA is to eliminate discrimination against people with disabilities. The idea is that an individual with disabilities ought to be able to use online services with the same ease as anyone else.

Tackling the Challenge

With the proliferation of e-commerce, the application of the ADA when it comes to navigating websites is truly a new frontier. There is a growing wave of claims, and the Supreme Court’s recent action will encourage more plaintiffs to come forward. Businesses wishing to get ahead face the challenge of interpreting how the law applies to websites and mobile apps. Foregoing an online presence isn’t practical, so businesses ranging from local mom-and-pop operations to Fortune 500 companies should take a close look at their online offerings.

Companies large enough to have an in-house IT staff that designs and maintains their websites and applications should ensure their staff is current in training and familiar with the latest guidance. For example, the Website Accessibility Initiative provides strategies, standards, and resources to make the web accessible to people with disabilities. It has promulgated private web content accessibility guidelines, such as WCAG 2.0 and the more recent WCAG 2.1, which are not binding but which may be helpful. In fact, in the absence of regulatory guidance, some courts have pointed to these guidelines for equitable relief, and parties have agreed that they may be followed in resolving claims.

For smaller companies seeking to make their sites compliant, the guidance may prove daunting. Even quick references may become complex technical discussions. As with many endeavors, the simpler the site, the easier it may be to take steps to make it accessible to people with disabilities.

Alternatively, a small mom-and-pop shop or startup may wish to use online website design services or retain an individual or company to design and maintain their sites. In either case, the business should ensure that the vendor is familiar with and complies with applicable statutes and regulations; has experience in using auxiliary aids and services to make sites user friendly; and provides ongoing maintenance and support. As always, companies using such services should make sure there is an avenue for risk transfer should a claim arise.

Finally, companies of any size may employ a consultant to evaluate their sites, make recommendations, and assist them with updates. As this is an emerging area, such advice may come at a cost that is challenging for a small business. Accordingly, businesses must decide what best fits their needs and budgets.

With this latest legal development, savvy businesses will take action to understand how the law has evolved in their own jurisdictions, and they will strategize and take action to tackle compliance sooner rather than later.



Sheila E. Fix is a partner at Wood, Smith, Henning & Berman. sfix@wshblaw.com

Andrew S. Kessler is a partner at Wood, Smith, Henning & Berman. akessler@wshblaw

Stephen J. Henning is a partner at Wood, Smith, Henning & Berman. shenning@wshblaw.com

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