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Jorge Pacheco
By
June 18, 2019

The Path to Web Accessibility

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Some are predicting a surge in federal ADA website accessibility lawsuits could hit California companies in 2019. This January, The Ninth Circuit ruled Domino's website was bound to the ADA rules, making California's federal courts more attractive to plaintiffs.

The Scope of the Issue

The Americans with Disabilities Act (ADA) has been the source of a massive amount of litigation since President George H.W. Bush signed it into law in 1990. But, ins spite many businesses beliefs, over the past few years, thousands of lawsuits have sprouted alleging that company websites are not accessible to the blind or visually impaired, in violation of Title III of the ADA, which prohibits discrimination on the basis of disability in “places of public accommodation.”  42 U.S.C. § 12182(a). Historically, ADA lawsuits have placed their focus on physical access barriers to businesses, but with the new allegations against inaccessible websites, these new class of lawsuits allege that:  

  1. Private company websites qualify as places of public accommodation; and
  2. Websites with access barriers (e.g., websites without compatible screen-reading software) deny plaintiffs the right of equal access. 

Often, we’ve heard of a single individual filing dozens or more lawsuits against many different companies alleging technical violations of Title III, and seek injunctive relief (e.g., for the company to make its website ADA accessible) and attorneys’ fees that are authorized by the statute. These lawsuits are not limited to big corporations and have targeted businesses of all sizes across a number of industries, including retail stores, restaurants, health care providers, and e-commerce companies.  Unfortunately, neither Congress nor the Department of Justice (the “DoJ”), the primary federal government agency responsible for enforcing the ADA, have adequately clarified the scope of the ADA in terms of website accessibility compliance for private companies.


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How it all started

In September of 2016, Guillermo Robles, a visually impaired individual, filed a lawsuit against Domino’s Pizza, LLC under Title III of the Americans with Disabilities Act and the California Unruh Civil Rights Act. Robles argued that he was unable to access or use the Domino’s Pizza website with screen-reader technology used by him and other blind people.

In March of 2017, District Judge S. James Otero dismissed Robles’ lawsuit saying that ADA Title III does apply to the internet and that permitting this case to proceed to trial without clear web accessibility regulations from the Department of Justice (DOJ) would violate the due process rights of the defendant.

Where things stand in 2019

This year, in a historic decision and unanimous decision by Judges John B. Owens, Paul J. Watford, and Jennifer G. Zipps, the Ninth Circuit Court of Appeals reversed Judge Otero’s ruling in the Robles v. Domino’s Pizza, LLC case, ensuring that it would proceed to trial. The panel also advised that lower courts could, in fact, reference WCAG 2.0 when structuring legal remedies.

Due to the increase in ADA website accessibility lawsuits and negative media coverage about them, the U.S. House of Representatives, by a 225-195 vote, passed legislation, the ADA Education and Reform Act of 2017. This new legislation would have amended the ADA to force plaintiffs to first provide written notice of noncompliance to businesses with public website before filing suit. The business would then have 60 days to come up with a plan to address the plaintiff’s concerns. Unfortunately, that bill stalled in the Senate, where 43 Senators blocked the Act.

What then?

On June 20, 2018, a bi-partisan group of 103 members of the U.S. House of Representatives wrote a letter to the Assistant Attorney General Stephen E. Boyd requesting clarity on “unresolved questions about the applicability of the ADA to websites” which have “created a liability hazard that directly affects businesses in our states…” On September 25, 2018, The DoJ responded:

The Department first articulated its interpretation that the ADA applies to public accommodations’ websites over 20 years ago. This interpretation is consistent with the ADA’s title III requirement that the goods, services, privileges, or activities provided by places of public accommodation be equally accessible to people with disabilities. Additionally, the Department has consistently taken the position that the absence of a specific regulation does not serve as a basis for noncompliance with a statute’s requirements. Absent the adopting of specific technical requirements for websites through rulemaking, public accommodations have flexibility in how to comply with the ADA’s general requirements of nondiscrimination and effective communication. Accordingly, noncompliance with a voluntary technical standard for website accessibility does not necessarily indicate noncompliance with the ADA…. Given Congress’ ability to provide greater clarity through the legislative process, we look forward to working with you to continue these efforts.

With this in mind, the DOJ’s current position is that Title III applies to all publicly-accessible websites used by companies that otherwise qualify as places of public accommodation, and companies can make their website accessible by any means, which may include but is not limited to, complying with WCAG 2.0, Level AA requirements. 


 Conclusion

After all this, we know one thing for sure, until Congress takes action to clarify how ADA rules applies to public businesses websites, courts and regulators will likely continue to cite the WCAG as the “standard” set of rules to make websites ADA compliant.


 

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