Americans with Disabilities Act

In another blow to those defending website accessibility cases, brought by legally blind or visually impaired plaintiffs under the Americans with Disabilities Act (ADA), the United States Court of Appeals for the Ninth Circuit recently reversed the dismissal of a lawsuit filed pursuant to Title III of the ADA in the United States District Court for the Central District of California.  In Robles v. Domino’s Pizza, Case No. 17-5504, the plaintiff, a blind man, alleged that Domino’s had failed to construct, design, maintain and operate both its website and  mobile application in such a manner so that he could fully access them.  Robles claimed that on at least two separate occasions he had tried to order a customized pizza online from Domino’s but was unsuccessful because the Domino’s website and mobile application did not allow his software to read them.

The federal district court dismissed Robles’ complaint without prejudice.  Although the district court found that Title III of the ADA did in fact apply to both Domino’s website and mobile application, the court, nevertheless, concluded that the application of the ADA to the Domino’s website and mobile application violated the company’s due process rights because the Department of Justice had failed to provide any helpful guidance on the issue and that “regulations and technical assistance are necessary for the Court to determine what obligations a regulated individual or institution must abide by in order to comply with Title III.”  Since the district court felt that only such regulations could cure these due process issues, it invoked what is known as the “primary jurisdiction doctrine”, a doctrine that allows a trial court to stay or dismiss a complaint without prejudice.

On appeal, however, the Ninth Circuit reversed and remanded the case back down to the trial court, agreeing with the district court that the ADA did apply to Domino’s website and mobile application but disagreeing with the district court’s application of the primary jurisdiction doctrine and its conclusion that imposing liability on Domino’s pursuant to Title III of the ADA somehow violated its due process rights.  The appellate court further reasoned that Robles was not seeking to have Domino’s held liable for a failure to comply with private industry standards regarding website accessibility, known as the Web Content Accessibility Guidelines 2.0; rather, an equitable remedy, requiring compliance with WGAC 2.0 was a possibility.

The Ninth Circuit, in its opinion in Robles, made clear it was expressing no opinion as to whether Domino’s website or mobile application actually complied with the ADA but rather was leaving that determination to the trial court.

Florida has long been considered a hotbed of lawsuits filed under Title III of the Americans with Disabilities Act.   Certainly, that practice has continued with the most recent trend of ADA cases, namely lawsuits alleging that websites are not accessible to the legally blind or visually impaired.

For those defending website accessibility cases under the ADA, unfortunately three fairly recent court decisions on cases filed in federal courts in south Florida will probably only increase the number of such lawsuits in Florida and further embolden counsel representing plaintiffs.   Most recently, on August 29, 2018, in the second known case where there has been a ruling on the merits in a website accessibility case, Judge Marcia G. Cooke of the United States District Court for the Southern District of Florida, in the case of Gomez v. General Nutrition Corporation, granted the Plaintiff’s Motion for Summary Judgment on the issue of liability, concluding that General Nutrition Corporation’s website was a place of public accommodation under the ADA, that “the remaining evidence suggests the Website is inaccessible” and that “[b]ecause the inaccessibility of the Website prevents Gomez from fully enjoying a service of the physical store, GNC is discriminating against Gomez and violating the ADA.” Judge Cooke left open the issue of remedy in denying summary judgment as to remedy.

The importance of the partial summary judgment in the Gomez case cannot be understated in that Judge Cooke found that the Defendant had violated the ADA without a trial. In Gil v. Winn-Dixie, 2017 U.S. Dist. LEXIS 90204, the first website accessibility case where there was a decision on the merits, Judge Robert N. Scola, Jr., also of the United States District Court for the Southern District of Florida, ruled in favor of the Plaintiff and against Winn-Dixie but only after a full trial.  That case, by the way, is currently on appeal to the United States Court of Appeals for the Eleventh Circuit which heard oral argument over four months ago.  There has been no decision yet on the appeal.

About a month before the decision in Gomez, the United States Court of Appeals for the Eleventh Circuit, in Haynes v. Dunkin’ Donuts, LLC et al., an appeal of the dismissal of a website accessibility case that had been filed in the United States District Court for the Southern District of Florida, reversed that dismissal, ruling that the blind plaintiff could pursue his claim that the website in question was inaccessible.   The case was remanded back down to the trial court to conduct further proceedings.

Lawsuits under Title III of the Americans with Disabilities Act, or ADA, based upon a company’s alleged failure to make its website accessible to the visually impaired or legally blind exploded in 2017 and 2018.  In  Gil v. Winn-Dixie, 2017 U.S. Dist. LEXIS 90204, the only known website accessibility case to actually go to trial, Judge Robert N. Scola, Jr. of the United States District Court for the Southern District of Florida ruled in favor of Gil, holding that Winn-Dixie’s website was indeed a place of public accommodation inaccessible to persons with visual impairments and holding that:  a.) the website had to be fully accessible; and b.) Winn-Dixie was required to implement the Web Content Accessibility Guidelines (WCAG) 2.0 for its website by an agreed-upon date.

The Gil v. Winn-Dixie case is currently on appeal to the United States Court of Appeals for the 11th Circuit.  The appellate court heard oral argument on October 4, 2018.  Winn Dixie’s arguments were as follows:

  • websites are not places of public accommodation under Title III of the ADA;
  • the WCAG are not law and the trial court’s adoption of those guidelines violated due process;
  • Winn Dixie is in compliance with the ADA because Gil had not been deprived of the full benefit of and equal access to the services and goods in Winn Dixie’s stores.

The 11th Circuit has not yet issued its decision on the appeal.  The outcome—particularly if there is a reversal—can potentially dramatically impact the landscape of website accessibility cases, particularly in Florida.

In another important website accessibility case under the ADA, Haynes v. Dunkin’ Donuts, LLC et al., Case No. 18-10373, the 11th Circuit, in a written opinion dated July 31, 2018, reversed the lower court’s dismissal of the website accessibility complaint of Dennis Haynes, a legally blind person.  The lower court had concluded that Haynes had failed to properly allege a nexus between barriers to accessing the website and an inability to access services and goods at a physical store.  In reversing and remanding the case back down to the trial court, the appellate court found that Haynes had demonstrated “a plausible claim for relief under the ADA.”  Thus, the initial victory for those defending ADA lawsuits arising from the trial court’s decision in Haynes was essentially wiped out by the 11th Circuit’s reversal.

Finally the future of the ADA Education and Reform Act of 2017 remains uncertain.  The bill, passed by the House of Representatives, requires amongst other things, pre-suit notice to an owner or operator of a place of public accommodation and an opportunity to cure prior to the filing of a lawsuit under Title III of the ADA.  That bill, however, does not appear to have gain any real traction in the Senate where 43 Senators—enough for a filibuster—have pledged, in writing, to block a vote on the Act.

When the Americans with Disabilities Act—the ADA—became  law in 1990, websites, which are so common a part of business and life these days, did not exist.   Nearly 30 years later, websites are now the driving force behind what is the most dramatic new and growing trend for lawsuits under the ADA, namely claims against owners and operators of websites.  The gist of these claims is that the websites are not properly accessible to those who are visually impaired or legally blind.

The number of ADA lawsuits has increased significantly in the last four years.  In 2017 alone over 7,600 lawsuits were filed as compared to a little over 2,700 such lawsuits in 2013, an increase of nearly 65%.  ADA lawsuits continue on the rise in 2018 with website accessibility cases accounting for the increase.  Florida and California, in particular, are two states where large numbers of lawsuits have been and are being filed.

Since website accessibility cases are not, in all likelihood, going away anytime soon, a question to ask is what is the owner and operator of a website, an owner and operator who desires to be proactive in preventing such lawsuits, to do?  Are there any regulations or guidelines in effect that can be followed or implemented earlier rather than later so that such an owner or operator can prevent rather than defend a lawsuit?

Unfortunately, there are no regulations in effect that can provide guidance or direction to owners and operators of websites.   The federal government has not communicated any desire to intervene on the issue.  Indeed, the Department of Justice has abandoned rulemaking on website accessibility cases even though it had indicated, years earlier, that it would issue regulations.   Those regulations presumably would and could provide a roadmap that owners and operators of websites currently do not have.

The only real direction that exists for owners and operations of websites at the present time comes in the form of guidelines published by the World Wide Web Consortium–or W3C—a private group of experts.    These guidelines are the Web Content Accessibility Guidelines (WCAG).  The WCAG Guidelines 2.0 were the guidelines specifically referenced by the United States District Court for the Southern District of Florida,  a little over a year ago, in the case of Gil v. Winn-Dixie Stores, Inc., where Winn-Dixie’s website was found to have violated the rights of a visually-impaired plaintiff under the ADA.

Earlier this month, the W3C updated the WCAG Guidelines 2.0.  The updated guidelines are known at the Web Accessibility Guidelines Level 2.1.   These, however, are simply guidelines; they are not regulations and they are not law.  For there to be clear, unequivocal direction to owners and operators of websites, equally clear and unequivocal law, in the form of regulations, is what is necessary.

When Congress passed the Americans with Disabilities Act, or the ADA as it is routinely referred to, in 1990 it probably could not have envisioned the sheer number of lawsuits that would be filed under the ADA in the ensuing years.  While there have been some ebbs and flows in the volume of such filings over the years, ADA lawsuits, nevertheless, have, by and large, abounded and continue to do so to the present day.

The rules of engagement with respect to ADA lawsuits may have begun to change, however, on February 15, 2018 when the United States House of Representatives passed H.R. 620, the ADA Education and Reform Act of 2017.  The bill is now pending in the Senate.

While there are probably two major components of H.R. 620, the most significant changes with respect to lawsuits under the ADA are as follows:

  • Prior to filing a lawsuit, the aggrieved party must serve the owner or operator of a place of public accommodation with a detailed notice of the alleged violation or violations of the ADA;
  • The owner or operator is then provided with 60 days to respond to the notice, describing how the violation or violations will be addressed; and
  • The owner or operator is then given another 120 days to correct the violation or violations—referred to as removing the barriers—or to at least make substantial progress in doing so.

Currently, there is no requirement that a party suing for alleged violations under the ADA provide any kind of notice to the owner of operator of a place of public accommodation prior to filing a lawsuit.  As such, opponents of H.R. 620 fear that the bill will dramatically impact access to courts for persons with disabilities seeking to remedy ADA violations.  Proponents of the law, on the other hand, believe changes are necessary to curtail what they see as an abundance of frivolous lawsuits designed to do nothing more than generate attorney’s fees.

If the ADA Education and Reform Act of 2017 passes the Senate, it is unclear what impact, if any, it will have on the newest trend in ADA lawsuits, namely lawsuits against owners or operators of websites, alleging that those websites are not accessible to the legally blind or visually impaired.  At first blush, it would not appear that this amendment to the ADA would apply to such claims in that the bill specifically uses the term “architectural barriers” which would seem to confine its scope to physical issues with a place of public accommodation.  Of course, since websites did not exist when the ADA was passed in 1990, the true scope of the ADA Education and Reform Act of 2017 will probably be an issue shaped by courts in the years to come.