In the last two months, at least two federal district courts have dismissed website accessibility lawsuits filed against private companies under the Americans with Disabilities Act (“ADA”), proving that this issue continues to be the Achilles Heel of the Department of Justice’s (“DOJ”) Regulatory Arena.
For context, imagine a blind person who is unable to make online mortgage payments because his bank’s website did not provide him the means. The DOJ is tasked with enforcing the ADA, a federal statute that provides for equal access to places of public accommodation, including private businesses, for such persons with disabilities. However, the text of the ADA is silent about public accommodations’ websites, and a recent executive order aimed at decreasing federal regulations has all but eliminated any chance that the DOJ will issue regulations on that topic. The absence of such regulations has emboldened disability advocacy groups across the nation to flood the courts with lawsuits against companies alleging a failure to provide equal access to audio, audiovisual, or other content made available online.
Not so fast, said the U.S. District Court for the Central District of California. On March 20, 2017, in the case of Robles v. Domino’s Pizza LLC, No. 16-06599, the federal court dismissed ADA web accessibility litigation brought against the enormous food retailer, Domino’s. The court relied on the “primary jurisdiction doctrine,” which allows courts to dismiss complaints pending the resolution of an issue that is “within the special competence of an administrative agency.” Noting that Congress has vested exclusive authority with the DOJ to promulgate regulations defining what web accessibility standards to impose on private companies, the court concluded that it was inappropriate to render judgment against Domino’s in the absence of such regulations.
There are various other legal issues that arise in ADA web accessibility cases, including the concept of standing, which means having a concrete injury that can be rectified by a court order, and whether a website is a place of public accommodation. The U.S. District Court for the Southern District of Florida, in the case of Gomez v. Bang & Olfusen America, Inc., No. 16-23801, shed light on both issues. The Gomez court dismissed an ADA web accessibility claim brought by a plaintiff who contended that the company’s website could hypothetically impede a blind person from enjoying all the benefits of the company’s retail stores on the basis that the plaintiff did not have a particularized injury (i.e., standing). As the court concluded, “[h]is generalized grievances are wholly unconnected to any harm he actually suffered at the place of public accommodation (i.e. the concrete, physical store) and are therefore insufficient to survive a motion to dismiss.” The court also recognized that websites are not included in the ADA’s express list of public accommodations: “If Congress – recognizing that the internet is an integral part of modern society – wishes to amend the ADA to define a website as a place of public accommodation, it may do so. But the Court, having no legislative power, cannot create law where none exist.”
Although these cases may suggest a shield to ADA web accessibility litigation, there are just as many courts across the country taking completely opposite views. For example, only one year ago, a Massachusetts federal court rejected the “primary jurisdiction doctrine” (relied upon in Robles) as a basis to dismiss ADA web accessibility claims made against Harvard University and the Massachusetts Institute of Technology. See Nat’l Ass’n of the Deaf, et al., v. Harvard Univ., et al., No. 15-30023; Nat’l Ass’n of the Deaf, et al. v. Massachusetts Inst. of Tech., No. 15-30024. Given the national split over these issues and the unlikelihood that the DOJ will issue clarifying regulations, businesses should be cautious.
The first step a business should take to minimize the risk of expensive litigation and exhausting DOJ investigations is to designate an ADA coordinator/compliance group to audit its website. Companies should simultaneously work with counsel so that reports and findings from these audits are generated under privilege. In addition, companies should adopt strong website accessibility polices and staff training materials. Moreover, one of the most effective ways to stave off litigation is to provide a customer service, like a hotline, devoted to assisting customers who encounter difficulties in accessing a company’s web content.
Those with questions about these emerging issues or looking for a preliminary assessment of their legal exposure under the ADA should contact John C. Petrella, Esq., Chair of the firm’s Employment Litigation Practice Group, at email@example.com, or Brigette N. Eagan, Esq., Counsel with the firm’s Human Resources Practice Group, at firstname.lastname@example.org or 973-533-0777.