On Monday, October 7, 2019, the United States Supreme Court denied a petition filed by the pizza conglomerate Domino’s to review a Ninth Circuit Court of Appeals decision that held Title III of the Americans with Disabilities Act (ADA) covers websites with a nexus to a physical place of public accommodation and that imposing liability on businesses for not having an accessible website does not violate the due process rights of public accommodations even in the absence of website accessibility regulations. The case will now proceed back to the trial court for a decision on the merits but is likely to settle in light of the Supreme Court’s denial.
Significance of New Website Accessibility Decision:
The Supreme Court’s lack of a decision in the Domino's case is almost the equivalent of a decision itself, sending a relatively clear statement that Title III of the ADA applies to websites. While some were hopeful this case would provide much-needed guidance on what compliance entails, the Supreme Court’s denial of cert leaves businesses in limbo waiting for either another case to reach the Supreme Court or the Department of Justice to issue guidance in this area.
Background -Title III of the ADA:
With the increasing prevalence of online businesses and mobile applications, over the past few years, there has been an onslaught of litigation under Title III of the ADA as users with a variety of disabilities have challenged the accessibility of companies’ online offerings as being inaccessible. Initially, the legal argument was that the ADA, enacted in 1990, did not apply to websites as they were not a place of “public accommodation” under the Act. However, Title III of the ADA states in pertinent part: “No individual shall be discriminated against on the basis of disability.” Over the years, however, there has been tremendous litigation from Plaintiffs and the consensus among the Circuit Courts that have heard the cases is that businesses with a nexus to a place of public accommodation, such as Domino’s that has a brick-and-mortar storefront, must comply with Title III with their online offerings as well. The Supreme Court’s denial of Domino’s petition to hear the case means the Ninth Circuit decision stands. While it has yet to be tested whether an exclusive online-only business (unlike Domino’s which had a brick-and-mortar connection) would be subject to Title III, given the litigation trend in this area that argument is likely a few years out and would likely be unsuccessful if raised.
“There was some optimism among the business community that this case would be an opportunity for the Supreme Court to step in and provide some much-needed guidance in this areas as businesses each day continue to face an onslaught of litigation from the Plaintiff’s bar,” Kara L. Hilburger, Octillo Law PLLC said.
Octillo Law is made up of web designers, former web design business owners, and technologists who work with global clients on ADA accessibility compliance and remediation, and litigation. Hilburger states: “We are counseling businesses, especially in light of this recent cert denial, to be proactive with their approach to website compliance, not only under the ADA but with respect to a myriad of laws that impact online business operations, from the GDPR to the CCPA. The decision maintains the status quo as we are still without clear legislative or judicial guidance, so partnering with someone who understands not only the rapidly evolving legal landscape, but the technical compliance piece is extremely important to put businesses in a legally defensible position.”
As companies continue to build and grow their businesses both online and through mobile applications by leveraging technology, accessibility should be part of the equation. “It is no longer “if” Title III applies,” Hilburger further said. “That ship has sailed. Businesses are prudent to begin incorporating accessibility from the ground floor as much as possible. This takes a true partnership between your technology team, operations, and counsel to build legally-compliant products, processes, and innovations that incorporate accessibility from the onset. And it doesn’t have to be as scary as one may think. Doing the “heavy lift” when going live helps put you in a legally defensible position from the get-go. For example, a majority of the website accessibility claims involve a screen reader that won’t work because of the way the website is coded and set up. Getting this right out of the gates can save time and money down the road.”
The Bottom Line - Website Accessibility Compliance:
Legal teams should collaborate with IT to develop sound legally defensible programs. Do not rely on free websites or tools that promise compliance, that is only part of the analysis.
Businesses should put website accessibility on the front burner and begin any necessary remediation to work towards ensuring their online business presence complies with the Americans with Disabilities Act whether they find themselves in the middle of litigation or not. Moving forward, businesses should work to build accessibility into their design and development of new products, services, and online offerings.
Sophisticated tech and legal counsel should be retained to assist in this process. Our team of experienced attorneys and devoted technologists is specially equipped with the skills and experience to help businesses navigate this area and provide the technical and legal support to partner with businesses to evaluate the accessibility of your online offerings. Octillo can help businesses negotiate with vendors and develop comprehensive and scalable data privacy and security programs.
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