When the Supreme Court last month denied Domino’s petition to review the Ninth Circuit’s decision that allowed a website accessibility case to proceed against the pizza chain, it continued a split among the circuits. While all courts agree that Title III imposes accessibility obligations to websites connected to “brick and mortar” businesses, circuits have divided over whether Title III extends to companies that do business only “online”. That divide remains.
The Ninth Circuit held that Title III refers to “places of public accommodation” and therefore only websites that have a “nexus” to a physical, public accommodation must comply with the accessibility requirement of the statute. Under this approach, a public accommodation must make its website accessible to the disabled (typically, the visually impaired) to the extent such accessibility would be necessary to provide equal access to the goods or services of the physical place of public accommodation for those with disabilities. For now, that decision stands and the split amongst the circuits as to which approach to follow remains.
While interesting, it would seem that resolving this split would not have helped Domino’s cause in any event, as its website was indeed found to have had a “nexus” to the services provided by a place of public accommodation. Rather, it appears Domino’s highlighted the split as a reason to argue that perhaps the entire idea of applying Title III to websites at all should be reconsidered. Indeed, the Washington Legal Foundation argued in its amicus brief that essentially all the circuits are wrong and that the Americans With Disabilities Act of 1990 simply did not cover or even anticipate websites as it was enacted before the Internet. This is not an entirely unfair argument, as Title III is clearly focused on physical barriers that must be removed for the disabled, and gaps in statutory law that might arise from changing technology should not be filled by the judiciary but by the legislature which can readily act to implement policy in response to changing times.
Domino’s argument failed. Not only do all the circuits see the ADA governing websites at least to some extent, the Department of Justice also “has repeatedly affirmed the application of [T]itle III to Web sites of public accommodations.” Really, how is the website any different from a front door if it similarly serves as the gateway to the products and services of a place of public accommodation? Neither the Ninth Circuit nor the Supreme Court was willing to go there. At least not yet.
Next, Domino’s argued that the language of Title III on its own is too vague to be followed or enforced and, as such, needs implementing regulations to establish a specific standard propounded by the Department of Justice in order to give notice of what technically must be done to comply with the law. Domino’s argued that because the Department of Justice had failed to adopt specific technical guidelines as to how to do comply, there exists a continuing failure of notice that would amount to a denial of due process for those subject to the law.
This also was not an unfair argument. In an area of technical complexity and multiple potential methods to resolve an issue, it would seem fair to expect a specific standard to allow businesses to know what it must do to comply with the law and avoid substantial liability. Indeed, a rule without enough specificity sufficient for someone to conform one’s behavior to it would seem to be the very antithesis of law.
Notably, in the absence of a regulatory standard, many including the Department of Transportation have referred to private industry standards to guide their compliance efforts. The most notable of these is what is known as WCAG 2.0. The DOT requires airline websites to adopt these standards and the DOJ has imposed these standards on other private entities as part of some of the consent decrees it has entered. WCAG 2.0 does not have the force of law, however, although it does serve as at least evidence of an industry standard for compliance.
In the end, the Ninth Circuit disagreed with Domino’s undue vagueness argument. In short, the Ninth Circuit held that Title III’s provisions are clear enough to be followed and enforced notwithstanding the DOJ’s failure to adopt specific technical guidelines as to how to do so. From the court’s perspective, Title III’s command to require accessibility so that the disabled may enjoy equal access to the products and services of places of public accommodation provides sufficient notice of the goal that must be achieved. As the court explained, since the goal is clear, “it is of no matter that the ADA and the DOJ fail to describe exactly how any given website must be made accessible to people with visual impairments . . . This flexibility is a feature, not a bug, and certainly not a violation of due process.”
The Supreme Court did not take the bait. By rejecting Domino’s petition, the Ninth Circuit’s decision remains law, at least in the Ninth Circuit.
Indeed, courts have been dealing with this sort of ambiguity for centuries in negligence cases brought in tort. What would the reasonable and prudent person do in any given situation? Ask a jury. The same can be said for whether a website as designed adequately allows the disabled equal access to the products and services of the place of public accommodation. Does the website do the job? Ask a jury.
Finally, Domino’s argued under the “primary jurisdiction doctrine” that even if there is no undue vagueness the court should nevertheless stay its hand until the DOJ eventually issues its regulations, as the DOJ has said it would eventually do over several years. Briefly, the Ninth Circuit was not convinced the DOJ was any better qualified to resolve accessibility issues than the courts and it was unwilling to force the plaintiff to wait for a remedy while the DOJ continued to delay action on propounding regulations.
So, there we have it. The Ninth Circuit’s opinion stands, the circuits remain split as to what websites must comply and the specific standard for compliance is unknown. Do not expect the DOJ to act soon, as its delay has served to delay extensive standards suggested by the predecessor administration. Rather, expect further, opportunistic litigation. Meanwhile, watch your website, as it could lead to liability.