It’s no secret that digital accessibility lawsuits have grown exponentially in the past few years. There was a 177% increase in digital lawsuits from 2017 to 2018, and numbers are projected to go even higher as 2019 draws to a close. In fact, one recent case, Robles v. Domino’s, may have paved the way for even more litigation in the coming years.
A brief history of digital accessibility lawsuits
The earliest high profile case regarding digital accessibility and disability discrimination law was Maguire v SOCOG, a 1999 case brought under Australia’s Disability Discrimination Act, where the court found in favor of a blind complainant who was unable to use the Sydney Olympics website for its intended purpose, due to accessibility issues. This was a landmark case for connecting web inaccessibility with unlawful discrimination against people with disabilities.
However, Gil v. Winn-Dixie Stores, Inc was the first digital accessibility lawsuit brought under the Americans with Disabilities Act (ADA). In this courtroom showdown, Judge Scola ruled in favor of the plaintiff, stating that the “…ADA does not merely require physical access to a place of public accommodation. Rather, the ADA requires that disabled individuals be provided ‘full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.’” He then ordered Winn-Dixie to make its website conform to the current Web Content Accessibility Guidelines (WCAG), an internationally accepted standard for accessible web content.
In an effort to eliminate subjective interpretations, for years the disability community has advocated for more specific language to be introduced into the ADA on what constitutes accessible conformance. Unlike public federal digital content, which relies the crystal clear Section 508 (an amendment to the Rehabilitation Act of 1973) to gauge accessibility, no such determinations are included in the ADA.
The Senate attempts to get clarification on the ADA
In 2018, a group of senators wrote a letter to the Department of Justice (DOJ) requesting clarification on how exactly the ADA should be interpreted in terms of digital content. The DOJ responded by stating that “The Department first articulated its interpretation that the ADA applies to public accommodations’ websites over 20 years ago.” However, in the letter, the DOJ neglected to articulate what technical standards should be used, noting “Absent the adoption 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.” Without clear guidance on this issue, judges from courts all over the United States have ruled based on their interpretations of the ADA and previous rulings on this issue.
Domino’s Pizza and the Supreme Court
On January 15, 2019, the Ninth Circuit Court of Appeals overturned a dismissal of the website accessibility lawsuit Robles v. Domino’s Pizza. The lawsuit, filed in 2016 by Guillermo Robles, had been previously dismissed by a district court on the grounds that a) it violated the primary jurisdiction doctrine and b) the lack of legal technical standards for public accommodation breached due process.
However, the panel of appellate judges ruled that the due process claim was flimsy and lack of specific guidelines did not let Domino’s off the hook. They concluded that a lower level California district court should proceed with the litigation and start the discovery process to determine whether Domino’s Pizza’s digital assets comply with the ADA regulations.
A watershed moment for accessibility advocates
After the Ninth Circuit overturned their dismissal, in June of 2019 Domino’s filed its petition for writ of certiorari for a Supreme Court appeal. Just a few short months later, in October 2019, the Supreme Court denied their petition. After hearing the news, Domino’s sent a release stating they “looked forward to presenting the trial in court.”
Disability advocates are overjoyed with the Supreme Court’s rejection. This sends a clear signal to organizations that despite the lack of explicit language on how digital content applies under the ADA, they will need to step up their accessibility game or face consequences. While some fear this recent turn of events will increase digital accessibility-related litigation, disability advocates argue legal consequences can be avoided if businesses comply with WCAG.
Both corporate entities and disability advocates are holding their breath to see how the trial between Domino’s Pizza and Mr. Robles plays out.