by Margo Blase (J.D. 2022)
The Americans with Disabilities Act of 1990 (ADA) requires companies to provide reasonable accommodations and accessibility to all public and private places open to the general public.[1] It provides little to no direction, however, for what accessibility means in the digital age. The ADA was written at a time when most companies did not have websites and apps were a thing of the future. While there are voice command programs available for users who are visually impaired, they often fail in practicality.[2] Due to this frustration, disabled Americans are less likely to utilize and benefit from the internet. A 2016 Pew Research survey found that only 50% of disabled users report using the internet on a daily basis compared to 79% of users without a disability.[3] As technology becomes a more vital part of everyday life, lawsuits pertaining to website accessibility are on the rise.[4] Companies and consumers alike are looking toward the courts to confirm whether the ADA, which dictates America’s physical landscape, is applicable to the online landscape.
When Domino’s was successfully sued in the U.S. Court of Appeals for the Ninth Circuit this past January, they turned to the Supreme Court on appeal.[5] Guillermo Robles, a blind man, brought suit after he was unable to order a pizza from Domino’s website or app, despite having screen-reading software. In a win for consumers with disabilities, the Ninth Circuit held that the ADA “applies to the services of a place of public accommodation, not services in a place of public accommodation.”[6] This is a positive outcome considering courts over the last few years have often ruled the other way and circuit courts continue to be divided on the subject.[7]
While the ADA has been around for nearly 30 years, companies are pointing to a lack of guidelines as a justification for not providing disability accommodations on their online platforms. In Robles v. Domino’s Pizza, Domino’s defense was that the Department of Justice (DOJ) had failed to provide helpful guidelines or strict requirements.[8] This is an issue which does not appear to be going away soon. In 2010, under the Obama administration, the DOJ announced plans to amend the ADA to include web accessibility. Under the Trump administration in 2017, however, efforts were suspended, and no new guidelines have been put forward.[9] While the Ninth Circuit held that Domino’s is only entitled to fair notice of legal duties, not a “blueprint for compliance” of statutory obligations, a lack of regulation is sure to lead to more litigation in the future. On October 7th, the Supreme Court also denied Domino’s request for certiorari, leaving the application of the ADA to the online world open to debate.
[1] See 42 U.S.C. §§ 12101–12213 (2012).
[2] See Anne Quito, There’s Already a Blueprint for a More Accessible Internet. If Only Designers Would Learn It, Quartz (November 15, 2018), https://qz.com/1407450/theres-already-a-blueprint-for-a-more-accessible-internet/ [https://perma.cc/9WS5-2D8R].
[3] See Monica Anderson & Andrew Perrin, Disabled Americans are less likely to use technology, Pew Research Center (April 7, 2017), https://www.pewresearch.org/fact-tank/2017/04/07/disabled-americans-are-less-likely-to-use-technology/ [https://perma.cc/6VFX-UYU2].
[4] UsableNet has been tracking federal web-accessibility lawsuits and found a 181% increase in suits for 2018 compared to 2017. See Jason Taylor, 2018 ADA Web Accessibility Lawsuit Recap Report [Blog], UsableNet (December 26, 2018), https://blog.usablenet.com/2018-ada-web-accessibility-lawsuit-recap-report [https://perma.cc/2L2N-SXVX].
[5] See Robert Barnes, Do Protections for People with Disabilities Apply Online? Domino’s Asks High Court, Washington Post (July 20, 2019), https://www.washingtonpost.com/politics/courts_law/do-protections-for-people-with-disabilities-apply-online-dominos-asks-high-court/2019/07/20/984c685e-a7fd-11e9-a3a6-ab670962db05_story.html [https://perma.cc/YZQ4-N8RP].
[6] Robles v. Domino’s Pizza, LLC, 913 F.3d 898, 905 (9th Cir. 2019), cert. denied 2019 WL 4921438 (Oct. 7, 2019).
[7] See Jason P. Brown & Robert T. Quackenboss, The Muddy Waters of ADA Website Compliance May Become Less Murky in 2019, Hunton Employment & Labor Perspectives (Jan. 3, 2019), https://www.huntonlaborblog.com/2019/01/articles/public-accommodations/muddy-waters-ada-website-compliance-may-become-less-murky-2019/ [https://perma.cc/A4LY-FYQM].
[8] See Robles, 913 F.3d at 908.
[9] See Nondiscrimination on the Basis of Disability; Notice of Withdrawal of Four Previously Announced Rulemaking Actions, Federal Register (Dec. 26, 2017), https://www.federalregister.gov/documents/2017/12/26/2017-27510/nondiscrimination-on-the-basis-of-disability-notice-of-withdrawal-of-four-previously-announced [https://perma.cc/VPQ7-6QUQ].
