Are Websites and Mobile Apps Places of “Public Accommodation” Under the ADA? That’s Unclear—For Now

September 6, 2019

With the rise of e-commerce, online shopping has become as an effective alternative to trips to brick-and-mortar stores. This has created a legal debate over whether websites owe online shoppers the legal protections originally intended for physical stores. The answer is not always clear. Indeed, courts throughout the country have been struggling over whether the legal protections afforded by the Americans with Disabilities Act of 1990—a civil rights law that prohibits disability-based discrimination—extend to the online marketplace. The debate focuses on whether online shopping sites, such as websites and mobile phone applications, are “places of public accommodation” under Title III of the ADA. If they are (and if they engage in interstate commerce), then they owe people with disabilities a “reasonable accommodation” to access and fully use and enjoy them—which in some cases can involve expensive changes to website and application design. The issue is only further complicated by the fact that courts have divided over this particular question—leaving e-commerce sites unsure of litigation risk and complicating disability rights across America. Now, however, Domino’s Pizza has petitioned the U.S. Supreme Court in a case involving the ADA dilemma, making it possible that the high court could finally clear up what the current law requires.

Courts around the country have ruled a variety of ways in Title III cases involving websites. Some courts have held that websites are not places of public accommodation, because the text of the ADA itself does not specifically identify websites as such places, or because the Department of Justice has “primary jurisdiction” over the issue and has not issued a regulation on the topic. Other courts have taken the “nexus” approach, ruling that only some websites must comply with the ADA, depending on whether a given website is for a business with actual brick-and-mortar locations.  Still other courts have gone further than this and ruled that no nexus to a physical store is required, because e-commerce websites themselves are today essentially functional equivalent to brick-and-mortar stores.

In Domino’s Pizza LLC v. Robles, a legally blind man tried to use the Domino’s website and mobile app with the help of a screen-reader software for the visually impaired to order a custom pizza. Unfortunately, Domino’s did not design its site and app to be compatible with the screen-reader software. The man sued Domino’s under the ADA, alleging that Domino’s failed to provide him with a reasonable accommodation—compatibility with his screen-reader software—to order a pizza through its website and app. The U.S. District Court for the Central District of California granted summary judgment to Domino’s, ruling that courts should abstain from deciding cases in the area because the Department of Justice—which is charged with enforcing the ADA—has primary jurisdiction over the legal standards on the issue. The plaintiff appealed, and the U.S. Court of Appeals for the Ninth Circuit reversed the district court’s ruling and remanded the matter for trial. In so doing, the Ninth Circuit held that the ADA applies to Domino’s website and app, because the ADA applies to “services of a place of public accommodation, not services in a place of public accommodation.”  The Court relied upon the “nexus” approach, holding that the connection of Domino’s website and app to its goods sold in physical stores—the pizzas—merited application of the ADA. The Court remanded to the District Court to determine whether the website and app complied with the ADA, or whether some additional level of accommodation—like compatibility with screen readers—was needed.  In response to the Ninth Circuit’s decision, Domino’s has petitioned the Supreme Court to decide “[w]hether Title III of the ADA requires a website that offers goods or services to satisfy discrete accessibility requirements with respect to individuals with disabilities.” It remains to be seen whether the Supreme Court will grant certiorari, agreeing to hear Domino’s case. In the meantime, a flood of ADA lawsuits against businesses with websites and mobile apps are being threatened or filed around the country.

The attorneys at Crosby & Higgins LLP have successfully resolved ADA claims and are able to advise on the technical details of ADA litigation, as well as how the lawsuits can potentially be avoided through compliance initiatives.  Contact us to get started today.