The Ninth Circuit's recent ruling in Robles v. Domino's Pizza, LLC provides yet another boon to plaintiffs across the country claiming that company websites may violate the Americans with Disabilities Act (ADA) unless they make specific accommodations to consumers who have visual, auditory, or other disabilities.1 While such litigation was already rapidly proliferating nationwide, Robles becomes one of the few federal appeals court decisions to specifically address website accessibility. It will undoubtedly shape future accessibility lawsuits, both in and outside of the Ninth Circuit, in several key respects.
Consumer financial services (CFS) companies are especially impacted because of the increasing degree to which they operate websites and mobile apps to promote and provide their products and services. Indeed, shortly after the Robles decision, the Credit Union National Association (CUNA) wrote a letter to new U.S. Attorney General William Barr highlighting the threat website accessibility litigation has been posing to credit unions in the absence of formal Department of Justice (DOJ) guidance. Different CFS companies will face different accessibility compliance issues depending on a variety of factors,2 but below are four ways that Robles impacts CFS companies across the board.
Due Process and Primary Jurisdiction Defenses Rejected
Most significantly, the Ninth Circuit overturned one of the few existing website accessibility decisions to embrace the due process and primary jurisdiction defenses against ADA claims. The California district court that initially dismissed the Robles case went against the majority of other courts by holding that company websites cannot be deemed to violate the Americans with Disabilities Act (ADA) until the DOJ provides specific guidance for website accessibility under Title III of the ADA.
For example, Domino's argued that it did not have fair notice of a legal obligation to comply with the private but widely used Web Content Accessibility Guidelines (WCAG). Rejecting the notion that liability was based improperly on the WCAG, the Ninth Circuit ruled that the ADA itself and existing guidance already "articulate comprehensible standards" that websites must provide "full and equal" access to the disabled and ensure "effective communication" through "appropriate auxiliary aids and services."3
The Ninth Circuit also rejected the primary jurisdiction defense that website accessibility requirements should first be determined by the DOJ – an agency with regulatory authority and competence over the relevant industry. Unpersuaded, the Ninth Circuit highlighted that the "DOJ is aware of the issue" but "expressed no interest in [it]."4 As Venable has covered previously, in December 2017 the DOJ withdrew its proposed ADA rulemaking after nearly eight years of review. Waiting for the DOJ to provide guidance at some undetermined future date would make "undue delay" for the plaintiff "inevitable," the Ninth Circuit noted.5 Moreover, such "delay is 'needless,'" because "[c]ourts are perfectly capable of interpreting the meaning of 'equal' and 'effective.'"6
Companies Can Be Ordered to Comply with the WCAG
While the Ninth Circuit acknowledged that the WCAG are "private" standards developed by technology and accessibility experts, the Ninth Circuit recognized that the WCAG "have been widely adopted, including by federal agencies, which conform their public-facing, electronic content to WCAG 2.0 level A and level AA Success Criteria."7 Indeed, "[DOJ] has required ADA-covered entities to comply with WCAG 2.0 level AA (which incorporates level A) in many consent decrees and settlement agreements in which the United States has been a party."8
Interestingly, the Ninth Circuit did not rule that failure to comply with the WCAG per se violates the ADA. But, the Ninth Circuit did hold that "the district court can order compliance with WCAG 2.0 as an equitable remedy if, after discovery, the website and app fail to satisfy the ADA."9 The Ninth Circuit observed that websites have "maximum flexibility in meeting the statute's requirements." Practically, though, Robles suggests that any ADA-covered website that is not WCAG-compliant is at risk of being ordered to become compliant.
Discovery Is Required to Determine ADA Compliance
The Ninth Circuit stated multiple times that "discovery" was required to determine "whether Domino's website and app provide the blind with effective communication and full and equal enjoyment of its products and services."10 For example, the Ninth Circuit held that "the mere presence" of a customer service telephone hotline, "without discovery on its effectiveness," was insufficient to warrant summary judgment for defendant.11 Thus, Robles will make it harder for defendants to dispose of website accessibility cases before discovery. The expense and burden of such discovery will be important factors in deciding whether to litigate or settle a website accessibility case.
Companies Have to Think About State Law Too
Robles exemplifies how companies have to contend with not just federal, but also state law website accessibility requirements. Plaintiff Robles alleged violations of both the federal ADA, 42 U.S.C. § 12182, and California's Unruh Civil Rights Act (UCRA), Cal. Civ. Code § 51.
The UCRA differs from the ADA in various respects. For example, a web-only service with no nexus to a physical place of public accommodation is not subject to the ADA under Ninth Circuit precedent,12 but could be subject to the UCRA. Cal. Civ. Code § 51(b). The UCRA also includes statutory and actual damages among its available remedies, whereas the ADA does not authorize damages. Furthermore, whereas ADA claims can be defended in federal court where defendants often have more protection, some website accessibility plaintiffs sue under just the state statute to keep the case in state court.
- 913 F.3d 989 (9th Cir. 2019).
- See, e.g., Mitchell v. Dover-Phila Fed. Credit Union, No. 18-102, 2018 WL 3109591, at *4-5 (N.D. Oh. June 25, 2018) (unlike federally chartered bank that offers services "to the general public," credit union had valid "lack of standing" defense against consumer who was "ineligible to become a member of" the credit union).
- Id. at 906-909 (quotations omitted).
- Id. at 910 (emphasis removed) (quotations omitted).
- Id. at 910-911.
- Id. at 902 n.1.
- Id. at 907.
- Id. at 911; see also id. at 907-908.
- Id. at 903 n.4.
- Id. at 905-906.