Before getting started on the blog of the week, a couple of housekeeping matters are in order. First, I am delighted that you have decided to visit my blog on my birthday (October 8). For trivia nuts, it is also the anniversary of the great Chicago fire. Second, Yom Kippur starts tonight. I wish everyone the best with that. Finally, both National League series are going to a game five. Wishing all of your teams good luck with that. Congratulations to the Yankees for moving on and to the Minnesota Twins on a great season.
Yesterday, the world of LinkedIn and some blogs just lit up with the Supreme Court’s denial of CERT in the case of Robles v. Domino’s Pizza, LLC, a published decision found here from the Ninth Circuit in January of this year. One of the questions that came up on LinkedIn is what is the effect of this decision, and this blog entry will discuss exactly that. My colleague and often time co-presenter, Richard Hunt, blogged here on this just yesterday. I agree with him to up to a point. That is, it is up to Congress to deal with the issue, but also regulations are sorely needed (a point that I know Richard agrees with me on). So, it is also up to the Department of Justice to continue somehow the work of the Obama administration with respect to website accessibility guidelines. As usual, the blog entry is divided into categories and they are: Ninth Circuit’s reasoning in Domino’s; and thought/takeaways. Of course, the reader is free to focus on either or both of the categories.
The Ninth Circuit’s Reasoning in Domino’s
- Where the website is a gateway to a physical store, title III of the ADA applies. That is, the statute applies to the services of a place of public accommodation and not to services in a place of public accommodation.
- Title III of the ADA requires that places of public accommodations furnish appropriate auxiliary aids and services when necessary to ensure effective communication with individuals with disabilities. That includes per 28 C.F.R. §36.303(b)(2), accessible electronic and information technology or other effective methods of making visually delivered materials available to individuals who are blind or have low vision.
- Domino’s received fair notice that its website and app had to comply with the ADA even if the statute is imprecise. That is, under the ADA, places of public accommodations must provide full and equal enjoyment of their goods, services, facilities, privileges, advantages, or accommodation for people with disabilities and have to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services (See 42 U.S.C §12182(a),(b)(2)(A)(iii)).
- Title III Prohibition of discrimination on the basis of disability and its requirement to provide appropriate auxiliary aids and services when necessary to ensure effective communication, places an affirmative obligation on places meeting the definition of a public accommodation to ensure individuals with disabilities have a full and equal enjoyment of their websites as individuals without disabilities.
- WCAG 2.0 is a question of remedy and not liability. So, due process is not involved.
- The Constitution only requires that Domino’s receive fair notice of its legal duties, not a blueprint for compliance with the statutory obligations. Further, it is entirely possible that the lack of specific instructions from DOJ might be intentional as it promotes maximum flexibility. In other words, the lack of specific regulations does not eliminate a statutory obligation.
- Primary jurisdiction doctrine, which we discussed here and in other places in our blog as well, does not apply when: 1) the agency is aware but has expressed no interest in the subject matter of the litigation; or 2) a referral to the agency would significantly postpone a ruling that a court is otherwise competent to make. Both are applicable.
- Domino’s is a published decision. That means in any jurisdiction in the United States, courts can rely on the decision as precedent. I do expect the due process and primary jurisdiction reasoning of the Ninth Circuit to be very persuasive across the country. Plaintiffs will have to be careful not to allege WCAG 2.0 as a liability standard rather than as as a possible remedy. So long as a plaintiff does that, they will not have a due process concern.
- The 11th Circuit currently has a decision pending before it where the trial court imposed WCAG 2.0 on a defendant. One wonders if that decision is not being held up because of thinking that the Supreme Court may have granted CERT on Domino’s. That concern is no longer a concern. So, one wonders if that decision will not come down shortly.
- Expect a huge boom in Internet accessibility litigation in California in particular because the Unruh Act ties into the ADA with respect to its violations. That Act also has a damages provisions (I am not a California licensed attorney). Also, in the case we discussed here, getting standing in California is not going to be terribly difficult.
- California did recently enact legislation dealing with architectural barriers litigation (I am not a California licensed attorney). One wonders, especially considering the influence of high technology in California, whether you will not see a similar law with respect to violations of the Unruh act with respect to barriers a person may face on the Internet.
- Richard and his blog entry talks about how it is up to Congress to fix this. Getting legislation through Congress isn’t going to be easy. In the Senate, any legislation has to have 60 votes to even get considered. Are the 60 votes there? I don’t think so. Senator Tammy Duckworth of Illinois is going to have lot of say with respect to that. With respect to HR 620, which we discussed here, it was Senator Duckworth leading the charge to stopping HR 620 in the Senate. She may very well feel the same way about Internet accessibility. In many ways, Internet accessibility is as equally a problem, if not more so, as physical accessibility for persons with disabilities.
- Many Senators have written to the DOJ asking them to come up with the regulatory scheme to deal with Internet accessibility. The Trump administration has expressed no interest in doing so. It isn’t like they would have nothing to build on. The Obama administration went quite far with respect to coming up with Internet accessibility regulations. One wonders whether there will not be increased pressure from legislators for DOJ to come up with regulations.
- Keep in mind, even if the regulation focused on WCAG 2.0 AA compliance like the Obama proposed regulation, the key is meaningful access. Don’t get into a trap of assuming compliance with the WCAG 2.0 AA is automatically ADA compliance.
- While WCAG 2.0-2.1 is the gold standard, as of now, lots of flexibility exist so long as meaningful access for a person with a disability is achieved.
- There is a split in the Circuits to how title III of the ADA applies to Internet only sites. However, that wasn’t the facts in Domino’s. For where the Supreme Court might go with respect to Internet only sites and ADA accessibility, see this blog entry.
Good Luck in game five y’all, and have a safe Yom Kippur. May everyone be inscribed in the book of life for the coming year.