My colleague, Richard Hunt, recently blogged on the issue of website accessibility here and here.  I want to focus and provide another perspective on his blog entry discussing Robles v. Dominos Pizza LLC 2017 U.S. Dist. LEXIS 53133 (C.D. Cal. March 20, 2017), and Gomez v. Bang and Olufsen America, Inc., 2017 U.S. Dist. LEXIS 15457 (S.D. Fla. February 2, 2017). By way of disclosure, when I was a teenager, with my bar mitzvah money, I bought a pair of Bang and Olufsen speakers for my stereo system. Very sweet music indeed.

I

Robles Facts:

The lawsuit filed on September 1, 2016, claimed that: 1) Dominos does not permit a user to complete purchases using screen reading software; 2) its mobile application does not permit the blind to access menus and applications on their mobile phone using voice over software; and 3) that the website and mobile App were not in compliance with WCAG (web content accessibility guidelines), 2.0. Since February 2017, Dominos website and its mobile website have included an accessibility banner directing users accessing the website using a screen reader with the following statement: “if you are using a screen reader and are having a problem using this website, please call 800-254-4031 for assistance.” That number is staffed by a live representative responsible for providing blind or visually impaired individuals with assistance using the company’s websites, although callers may experience delays and be placed on hold. Customers can also directly call their local restaurant to order food, purchase goods, or ask questions. Dominos defended on due process grounds.

II

Robles Reasoning Dismissing the Complaint

  1. The primary jurisdiction doctrine allows the court to stay proceedings or dismiss the complaint without prejudice pending the resolution of an issue within the special competence of an administrative agency.
  2. Title III of the ADA applies to services of a place of public accommodation and not to services in a place of public accommodation.
  3. Limiting the ADA to discrimination in the provision of services occurring on the premises of a public accommodation contradicts the plain language of the statute.
  4. The ADA requires auxiliary aids and services unless a fundamental alteration exists.
  5. DOJ has consistently stated that the ADA’s accessibility requirements apply to websites of private companies.
  6. The notice of proposed rulemaking on website accessibility for title III entities was issued in July of 2010 and keeps getting pushed back.
  7. The lack of regulations means a defendant does not have a reasonable opportunity to know what is prohibited. The government could have solved the vagueness problem without time-consuming and costly litigation by merely clarifying what it believed the obligations are for title III entities with respect to their websites.
  8. The lengthy timeline of DOJ’s inaction leaves in-house counsel and others to correctly read legislative tea leaves as to their compliance obligations.
  9. Plaintiff did not address defendant’s due process claims and therefore conceded the issue.
  10. Plaintiff seeking to impose on all regulated persons and entities a WCAG 2.0 requirement without specifying a particular level of success criteria and without the DOJ offering meaningful guidance on the topic flies in the face of due process.
  11. While Access Board guidelines are to the contrary, no deference is owed because those guidelines have yet to be adopted by the DOJ. Similarly, DOJ’s interpretation in a notice of proposed rulemaking is also unpersuasive.
  12. In other litigation, DOJ has said that until the process of establishing specific technical requirement for a particular technology is complete, title III entities have a degree of flexibility in complying with the general requirements of nondiscrimination and effective communication, though they still have to comply. Accordingly, plaintiff failed to articulate why either the provision of a telephone hotline for the visually impaired or compliance with the technical standard other than WCAG 2.0 would not fall within the range of permissible options afforded under the ADA. Similarly, the auxiliary aids requirement is a flexible standard allowing the place of public accommodation to choose among various alternative so long as it results in effective communication.
  13. Seven years has passed since the DOJ first posed the question to the public about website accessibility and the public has not received a satisfactory answer yet.
  14. A case law search revealed not a single case where a court suggested, much less held, that a title III entity has to comply with a particular WCAG conformance level.
  15. The Attorney General was directed by Congress to promulgate regulations clarifying how places of public accommodations must meet their statutory obligations for providing access to the public under the ADA. Further, that mandate includes formulating implementing regulations and rendering technical assistance explaining the responsibilities of covered individuals and institutions. Those regulations and technical assistance are necessary in order to determine what obligations regulated individuals or institutions have to follow in order to comply with title III of the ADA.
  16. Issue of web accessibility obligations require both expertise and uniformity in administration as shown by the DOJ’s multiyear campaign to issue a final rule on this subject.
  17. The court calls on Congress, the Attorney General, and the Department of Justice to take action setting minimum web accessibility standard for the benefit of persons with disabilities, those subject to title III, and the judiciary.

 III

Robles Takeaways

  1. In the absence of properly promulgated regulations, defendants have a great deal of flexibility in determining how persons with disabilities access their places of business. All the ADA requires with respect to title III, is meaningful access. So, the lack of regulations presents an opportunity for defendants by giving them maximum flexibility with respect to meaningful access determinations for persons with disabilities. It would certainly help if the defendant involved persons with disabilities in the process. It would also help if they engaged in an interactive process with persons with disabilities.
  2. On the plaintiff side, instead of focusing on WCAG accessibility standards, it is probably better to focus on how meaningful access is being denied.
  3. A big difference exists between the DOJ settlements insisting upon WCAG accessibility standards, such as here, v. a court saying that WCAG standards must be followed.
  4. Plaintiffs insisting on a particular standard for web accessibility rather than focusing on meaningful access may very well face dismissal based upon the primary jurisdiction/due process concerns expressed in Robles.
  5. I don’t look for accessibility of website regulations to be coming down anytime soon.
  6. I am not sure why the plaintiff conceded the due process grounds, intentionally or otherwise. Plaintiff could have argued, for example, that title III requires meaningful access. Determining meaningful access necessarily means an interactive process. Accordingly, due process/primary jurisdiction concerns are misplaced. It is true that the interactive process is a title I requirement, but how else can you determine whether meaningful access is occurring for a particular person with a disability absent an interactive process? Also, the interactive process has been extended outside of title I of the ADA. See here for example.

IV

Gomez Facts:

A legally blind plaintiff tried to use the website to browse and research audio equipment. However, the website is not compatible with screen reader software or any other software making the website accessible to visually impaired customers. Defendant defended on the grounds that the website was not a place of public accommodation under title III of the ADA.

 

V

Gomez Reasoning Dismissing the Complaint Without Prejudice

  1. Relying on the 11th Circuit case of Rendon v. Valleycrest Productions, Inc., the ADA’s regulatory reach is limited to physical, concrete places of public accommodation or anything affecting access to or enjoyment of those physical spaces.
  2. A website wholly unconnected to a physical location is generally not a place of public accommodation under the ADA.
  3. If a plaintiff alleges that a website’s inaccessibility impedes the plaintiff’s access to a specific, physical, concrete space, and establishes some nexus between the website and the physical place of public accommodation, then the plaintiff’s ADA claim can survive a motion to dismiss.
  4. Plaintiff failed to allege any facts that the website impeded his own personal enjoyment of the goods and services offered at its retail locations. Generalized grievances are wholly unconnected any harm he actually suffered at the place of public accommodation (the concrete, physical store), and therefore, are insufficient to survive a motion to dismiss.
  5. Based on the allegations of the complaint, it appeared that plaintiff never intended to utilize Bang and Olufsen’s physical retail location, but instead planned to order audio equipment online and have it delivered to his home.
  6. The ADA does not require places of public accommodation to create full service websites for persons with disabilities.
  7. The ADA does not require a place of public accommodation to have a website at all. Rather, all the ADA requires is that if a retailer chooses it to have a website, the website cannot impede a person with a disability’s full use and enjoyment of the brick and mortar store.
  8. In a footnote, the court said that it recognized that the Internet is an integral part of modern society and Congress is free to amend the ADA to define a website as a place of public accommodation, but it isn’t up to the court, which has no legislative power, to create law where none exist.

VI

Gomez Takeaways

  1. Gomez goes too far with respect to ¶ ¶ 4-7 and should be appealed.
  2. The court’s reasoning requires a person with a disability to actually visit a store in order to have a claim. Such a requirement flies in the face of consumer behavior today whereby brick-and-mortar stores are closing left and right due to consumers buying many things online. Those consumers often times have no intention of actually going into the store and sampling or seeing the product before making that purchase online.
  3. Whether a person ever intends to use a physical retail location should be irrelevant to the inquiry of whether a sufficient nexus exists between the website and the physical location.
  4. True, the ADA does not require places of public accommodation to create full service websites for persons with disabilities, but they should have meaningful access to those websites under title III of the ADA, even assuming “a nexus,” is the proper standard. That is, the gateway theory is certainly becoming the trending view in the courts, but it isn’t universal as discussed in this blog entry and in this blog entry as well.
  5. It goes too far to say if a retailer chooses to have a website, that website cannot impede a person with a disability’s use and enjoyment of the brick and mortar store. That is, requiring a physical presence in the store.
  6. True, Congress missed an opportunity when the ADA was amended to make clear that websites were places of public accommodations. On the other hand, the legislative history of the ADA does say it is supposed to change with technology.
  7. Another court adopts the gateway theory of when a website must be accessible to persons with disabilities, which is certainly the trend. However, this case goes much further by requiring a harm actually suffered at the place of public accommodation. Accordingly, if I was the plaintiff, I would most certainly consider an appeal to the 11th Circuit as this can’t possibly be right.
  8. This decision mean that person without disabilities can freely shop and buy things online, but people with disabilities have the added requirement of showing a harm from the actual store itself. That simply can’t be right and it eviscerates the whole idea of the ADA, which is to integrate persons with disabilities into every aspect of society.

One Response to Defenses to Serial Website Litigation

Great blog Bill. I disagree with you on Gomez. The nexus theory treats the website as a service of the brick and mortar store. For the website to be a service of the store the content at issue must relate to the store, which online ordering does not (unless it is one of those stores where you can order on-line and pick up at the store.

Whether you agree with Gomez or not, however, the questions it raises illustrate the due process concerns in Robles. Assuming that pure internet businesses are not subject to the ADA (as the 9th Circuit has held) the question of when a website is a service of a brick and mortar store is hard to answer. Some pages in a site, such as store locator pages, clearly serve brick and mortar stores. Others, such as a corporate information page, don’t. Treating a “website” as a single service is a problem because websites serve many purposes, and in a retail context some of those may be unrelated to brick and mortar stores. Regulations could clarify this, although DOJ is unlikely to provide anything useful given the change of administration and its own position that all websites are ADA accommodations.

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