News & Updates: Website Accessibility: Is the Lack of DOJ Guidance Good or Bad for Companies?

On January 15, 2019, the Ninth Circuit Court of Appeals issued an important ruling regarding website accessibility liability under the Americans with Disabilities Act (“ADA”). The case, Robles v. Domino’s Pizza, LLC, 913 F. 3d 898 (9th Cir. 2019), held that the ADA applies to Domino’s website and app and rejected Domino’s argument that imposing liability violated its due process rights. While the decision is a loss for Domino’s, it may provide other companies with a defense against serial ADA plaintiffs who seek payments based on mere technical non-compliance with industry accessibility standards.

The background to the Ninth Circuit’s decision concerns aborted attempts by the Department of Justice (“DOJ”) to adopt guidelines for accessible websites. In recent years, many plaintiffs had argued that websites that failed to comply with the Web Content Accessibility Guidelines (WCAG) 2.0 – a series of web accessibility standards established by a standard-setting organization – violated the ADA. WCAG 2.0 had become the de facto legal standard adopted in numerous court decisions and private settlement agreements. The DOJ considered formally adopting WCAG 2.0 as the standard for web accessibility and issued Advanced Notices of Proposed Rulemaking on the subject. However, perhaps as a result of the change of administration, the DOJ reversed course in December 2017.

In this context, the due process argument advanced by Domino’s was that because the ADA does not specify a technical standard (e.g., WCAG 2.0) for web accessibility, Domino’s lacked fair notice of applicable legal requirements. The Ninth Circuit rejected this argument, holding that the ADA had, in fact, provided fair notice “that its website and app must provide effective communication and facilitate ‘full and equal enjoyment’ of Domino’s goods and services to its customers who are disabled.” More detailed, technical standards were not required for due process purposes.

But while the Robles decision impacts the viability of the due process defense for now (rumor is that Domino’s plans to petition the US Supreme Court for certiorari), there is a silver-lining: Robles establishes that websites should not be judged based solely on the lack of technical compliance with a set of detailed standards such as WCAG 2.0. Instead, companies have flexibility in how they might provide effective communication to their customers. As a result, companies may be able to avoid liability if their website provides “effective communication” to disabled customers, despite technical non-compliance items.

As public accommodations have experienced in the building accessibility context, while the existence of specific guidance for accessibility may provide a safe harbor, it does not eliminate repeated claims or litigation from serial ADA plaintiffs. In the website accessibility context, the DOJ’s decision not to adopt WCAG 2.0, coupled with decisions like Robles, may help companies deflect claims from serial ADA plaintiffs.