In a blog post from February of this year, we discussed the case of Robles v. Domino’s Pizza, in which a blind man sued Domino’s in 2016 for violating the Americans with Disabilities Act (“ADA”) after he was unable to order food from the pizza chain’s website using screen reading technology because the website lacked sufficient software compatibility capabilities.  Because the ADA guarantees people with a disability “full and equal enjoyment of the goods and services … of any place of public accommodations,” the plaintiff claimed that he had been the victim of unlawful disability discrimination.  Domino’s, on the other hand, argued that while the ADA applies to its brick-and-mortar locations, it does not apply to its website because a website is not defined in the ADA as a place of public accommodation.

In its decision, the U.S. Court of Appeals for the Ninth Circuit agreed with the plaintiff, finding that the ADA protects not just restaurants, hotels, stores, and other physical “brick and mortar” locations, but also the “services of a public accommodation,” notably websites and apps.  The Court then found that Domino’s violated Title III of the ADA because its website’s incompatibility with screen reader software impeded access to the goods and services of its physical pizza franchises.  Notably, this decision was the first by any U.S. Court of Appeals holding that a website should be considered a place of public accommodation under Title III of the ADA.  You can read the entire decision here.

In response to the Ninth Circuit’s decision, Domino’s filed a petition for Writ of Certiorari with the U.S. Supreme Court, asking the Court to review the lower court’s decision.  For those of us who deal with this issue on a daily basis, we were looking forward to having the Supreme Court finally opine on the issue of whether a website should be considered a place of public accommodation under the ADA in the absence of specific language in the statute describing it as such.  In fact, the U.S. Chamber of Commerce and business groups that said they represented 500,000 restaurants and 300,000 businesses joined in the appeal, urging the high court to review the Ninth Circuit’s decision. They complained of a “tsunami of litigation” and worried that judges nationwide would see the appeals court’s decision as “imposing a nationwide website-accessibility mandate.”

Nonetheless, on October 7, 2019, the Supreme Court denied Domino’s petition for Writ of Certiorari, which means it will not review the Ninth Circuit’s decision.  Importantly, this is not a formal ruling upholding the Ninth Circuit decision, and the justices could agree to take up the issue at a later date when another case invariably presents itself.  Thus, this is not “the law of the land.” That being said, the great majority of case law, both in the Ninth Circuit and in other areas of the country, permits individuals with visual impairments to continue to file suit against places of public accommodation if their websites are not fully compatible with screen reader software or otherwise not accessible.

In an online statement, Domino’s expressed disappointment with the Supreme Court’s refusal to review this case: “Creating a nation-wide standard will eliminate the tsunami of website accessibility litigation that has been filed by plaintiffs’ lawyers exploiting the absence of a standard for their own benefit, and chart a common path for both businesses and non-profit institutions to follow in meeting the accessibility needs of the disabled community.”

It certainly is possible that the Supreme Court could take up a similar case in the future, especially if another federal court of appeals issues a contrary ruling.  The Court often hears cases on which there is a circuit split.  For now, however, we simply need to wait longer for that day to come.  In the meantime, all businesses that are considered places of public accommodation are advised to seek guidance from legal counsel regarding their ongoing legal obligations.  In all likelihood, such businesses will want to work with an website accessibility consultant (under the advice and direction of counsel to maintain privilege) to ensure that their websites are accessible for individuals with visual or hearing impairments.  Indeed, as we head towards the end of 2019, it is clear through the applicable case law – both in the Ninth Circuit and elsewhere – that there is significant legal exposure for any business that utilizes a website that is not ADA compliant.

We will continue to keep you updated on legal developments in this ever-developing area of the law.