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Robles v. Domino's Pizza, LLC (2019) 913 F.3d 898.
There has been a wave of lawsuits and demand letters from plaintiffs claiming that websites that are not accessible to people with disabilities violate the American’s with Disabilities Act (ADA) in recent years. A number of cases in 2019, including Robles v. Domino’s Pizza, LLC, tested whether the ADA applies to websites. The growing body of case law is making clear that, at least in California and the broader Ninth Circuit, the ADA does apply to at least some websites.
Mr. Robles is blind and relies on screen reader software to access websites. This type of software only works to the extent that the text and images appearing on the website are readable by the software. For example, images that contain text are typically not readable by this software unless the website also includes code that tells the screen reader software what text is contained in the image.
Domino’s Pizza, LLC (Domino’s) operates an online website and application that allows customers to order its products online. Mr. Robles alleged that on two separate occasions he attempted to access Domino’s website to place an order and was prevented from doing so because the software he uses was unable to read the website and application. He filed suit alleging Domino’s was in violation of the ADA because Domino's failed to “design, construct, maintain, and operate its [website and app] to be fully accessible to and independently usable by Mr. Robles and other blind or visually-impaired people.”
The lower court held that the ADA applied to Domino’s website, but found that Domino’s could not be held liable in this case because the Department of Justice had not yet issued guidance as to what standards of accessibility a website must meet. The Department of Justice had stated its intent to issue such regulations in 2010 but has to date not done so. Domino’s argued that it was therefore unclear what obligations Domino’s had with respect to website accessibility and that its due process rights would therefore be violated by holding it liable in this case.
The Ninth Circuit Court of Appeals reached a similar conclusion as the District Court in finding that the ADA does apply to some websites, but rejected the argument that applying the ADA in this case was a violation of Domino’s due process rights. The Ninth Circuit held that the plain language of the ADA itself was sufficient to put Domino’s on notice of its obligation under the law to make its website accessible, so that the lawsuit itself was not a violation of its due process rights.
The Ninth Circuit’s reasoning in finding that the ADA applied to Domino’s website is especially instructive. The Court stated that the “nexus” between Domino’s physical restaurants and its website and application was critical to its analysis. It is well-established that physical restaurants are “places of public accommodation” within the meaning of the law, but many businesses have disputed whether websites and apps are also places of public accommodation, as prior case law has found that the law only applies to “actual, physical places where goods or services are open to the public, and places where the public gets those goods or services….” See Weyer v. Twentieth Century Fox Film Corp, 198 F.3d 1104, 1113–14 (9th Cir. 2000). Here, the Court held that because the website and application facilitates access to goods and services at Domino’s physical restaurants, there is a sufficient nexus between a public place of accommodation to find that the ADA mandates that the website also be accessible.
This decision is critical for car dealers for several reasons. First, it is in line with several other recent cases similarly holding that websites for physical businesses must be accessible to people with disabilities, such as the California Court of Appeal case Thurston v. Midvale Corp., 39 Cal. App. 5th 634 (2019). Second, the United States Supreme Court declined to review this case, leaving it in place as controlling law in the Ninth Circuit. Finally, the Ninth Circuit’s analysis that the ADA applies where there is a nexus between a physical business and a website or application makes it difficult for dealers to argue that the ADA does not apply to their websites, as the websites typically serve to facilitate access to the goods and services at the dealership.
Our firm has seen a spike in demand letters related to website accessibility in the wake of these recent decisions. Every dealer should therefore consider investing in services that work in the background of their websites to accommodate disabled users. These services are valuable in that they solve problems such as the readability of images without interfering with the look or usability of the website. This small investment now can help your dealership avoid a costly lawsuit while also providing a valuable service to potential customers.
White v. Square, Inc. (2019) 7 Cal. 5th 1019.
A typical objection from car dealers when they receive an Americans with Disabilities Act (ADA) demand letter or lawsuit from a disabled individual related to website accessibility is that the plaintiff is unlikely to actually purchase a vehicle. This objection is unlikely to succeed for several reasons, but the California Supreme Court recently rendered a decision on plaintiffs’ ability to bring a lawsuit over use of websites that should put this objection to rest. In White v. Square, Inc., the Court held that individuals have standing to sue under California’s Unruh Civil Rights Act when they access a website with the intent to use its services are prevented from doing so by the website’s terms of service. Unruh is typically included in ADA lawsuits as it allows the plaintiff to claim statutory damages under the ADA and seek attorney’s fees.
In this case a payment processing website included in its terms of service that the user “will not accept payments in connection with” the business activities of “bankruptcy attorneys or collection agencies engaged in the collection of debt.” White, an attorney who wanted to use Square’s services in connection with a bankruptcy practice, sued Square in federal court alleging discrimination under Unruh.
Without reaching the merits of the claim, the federal district court dismissed the complaint for lack of standing because White did not actually sign up for Square’s service. The plaintiff appealed to the U.S. Court of Appeals for the Ninth Circuit, which certified for the Supreme Court of California the narrow question of whether Unruh provided standing to a plaintiff who intended to transact with an online business, but did not.
The California Supreme Court concluded that standing under Unruh did not require that Mr. White sign up for Square’s service. The Court determined that an individual alleging discrimination need not “engage in a futile gesture” of completing a transaction after encountering an allegedly discriminatory policy in order to have standing under Unruh. Instead, an individual must only allege that the individual visited the website, encountered discriminatory terms, and intended to make use of the business’s services in order to have standing to bring a claim.
While this case did not involve the ADA, the opinion suggests that visually impaired individuals who visit an ADA-noncompliant website with the intent to make use of the website’s services may have sufficient standing to bring claims for violation of the Unruh Civil Rights Act, even if the individual does not take action to actually use the website’s services. Accordingly, this opinion drives home the importance of ensuring that commercial websites are compliant with the ADA and state law. For car dealers, it effectively eliminates the objection that an individual plaintiff had not intent to purchase a vehicle, as this analysis only requires a showing that the individual had an intent to access the dealership’s website’s services.