patchworkDebate over whether the Americans with Disabilities Act’s (ADA) applies to websites has been raging for years—mostly in the federal courts. As happens all too often, federal legislators and regulators have remained mostly mute, leaving judges to resolve this thorny question. This default appeal to the judiciary, which has produced divergent decisions, deprives website owners the consistent and transparent fair notice that the free-enterprise system needs (and that businesses deserve under our Constitution) to function.

The Ninth Circuit is the latest court to stitch a new block onto the patchwork quilt of website-related ADA rulings. On January 15, the court held in Robles v. Domino’s Pizza, LLC that the company’s website was a service of a “place of public accommodation” (Domino’s physical stores) and thus must be accessible under the ADA. The court also rejected Domino’s argument that the Justice Department’s failure to offer formal guidance on the websites’ ADA status violated their Fifth Amendment right to due process. The Robles decision was highly anticipated and will have a broad impact, evidenced by the amicus brief filed by a coalition of business associations.

The statute, passed in 1990, makes no mention of cyberspace. The ADA’s pivotal section, Title III, bars discrimination on the basis of disability at any “place of public accommodation.” That section lists 12 categories of places of public accommodation, all of which are physical places. The Justice Department’s implementing regulations clearly relate that physical structures in specific locations, and not collections of data that can be accessed access anywhere in the world, are places of public accommodation. Congress, of course, would not have considered the question of websites in the late 1980s. But when Congress amended the law in 2008, it notably did not expand the ADA’s application to websites.

During the Obama Administration, DOJ argued in enforcement actions and amicus briefs that the ADA applied to websites. It also issued an Advanced Notice of Proposed Rulemaking (ANPR) in 2010 for website accessibility rules. But DOJ never issued a proposed rule for public comment and the Department withdrew the ANPR in 2017. A September 4, 2018 letter from a number of Senators, including the Chairmen of the Senate Judiciary Committee and the Senate Banking Committee, urged DOJ to “promptly take all necessary and appropriate actions within its authority … to resolve the current uncertainty … [that] plaintiffs’ lawyers are exploiting … for personal gain.”

The Senators’ statement about plaintiffs’ lawyers is not hyperbole. As detailed in a September 21, 2018 WLF Legal Backgrounder, ADA Title III litigation has become a cottage industry, with federal claims increasing from 57 in 2015 to 814 in 2017. Statistics compiled half way through 2018 relate that an additional 685 suits had been filed.

While some federal courts have refused to expand the law’s application beyond physical places, others have engaged in creative statutory interpretation. Several district courts, including the District of Massachusetts in National Association for the Deaf v. Netflix, Inc., have conjured the “spirit of the law” to justify rulings that websites are places of public accommodation. That decision directly conflicts with Cullen v. Netflix, Inc., in which a California-based federal court held that the streaming provider’s site need not comply with the ADA.

Cullen utilized a “nexus” approach. If the defendant, for instance, was Blockbuster Video instead of Netflix, and a plaintiff used the company’s website to rent videos from the physical store, the court likely would have held the defendant’s website had to comply with the ADA. But Netflix has no affiliated physical location, so the Cullen court declined to impose ADA standards. That nexus theory of the ADA—that a website’s inaccessibility impeded the plaintiff’s “full and equal enjoyment” of the physical location—led another California-based court to find that Target’s website ran afoul of the law. Similarly, a Florida-based federal court found that grocer Winn-Dixie’s website, which the visually-impaired plaintiff couldn’t navigate, was not compliant with the ADA. The court reached this conclusion even though, unlike Target’s website, Winn-Dixie’s site did not allow visitors to make any purchases online. In addition, the plaintiff testified that it was his personal preference not to shop at the actual grocery store. A decision is pending from the Eleventh Circuit on Winn-Dixie’s appeal.

With Robles, the Ninth Circuit becomes the first federal appeals court to embrace this “nexus” approach in the context of a website. Robles alleged that his screen-reading software was not compatible with Domino’s website. Because that incompatibility “impedes access to the goods and services of its physical pizza franchises,” the Ninth Circuit affirmed the lower court’s decision that the ADA applies to Domino’s site.

The Ninth Circuit further held that DOJ’s failure to enact specific ADA regulations on the status of websites did not deprive Domino’s of due process. The court’s preliminary conclusion that Domino’s was generally on notice that the ADA applied to its website, however, is rather flawed. The opinion quotes the 2010 ANPR’s self-serving conclusion that “DOJ has ‘repeatedly affirmed the application of [T]itle III to websites.'” The ANPR cited informal letters, DOJ amicus briefs in private lawsuits, and other sub-regulatory actions in support of that assertion. None of those documents or statements carries the force of law. In fact, DOJ itself now holds that same opinion of sub-regulatory guidance. This past December, DOJ made the so-called Brand memo, which directed federal law-enforcement officials not to rely upon informal actions and statements, a formal part of its Justice Manual.

Without formal regulations that have been gone through notice-and-comment rulemaking, businesses are left to decipher federal courts’ inconsistent rulings, which are technically only applicable in that court’s district or circuit. Instead of declaring Domino’s website a place of public accommodation, Robles required that some usefule connection must exist between the site at issue and an actual place of public accommodation. But what if  the site’s inaccessibility does not impede access to the offerings of at the physical location? The Ninth Circuit specifically said in a footnote it was not deciding that question. Perhaps the Eleventh Circuit in Winn-Dixie will decide the question, since the website’s incompatibility with the plaintiff’s software did not prevent him from accessing items at the actual grocery store.

As the business coalition’s amicus brief in Robles explained, thanks to the prevailing patchwork of website-related ADA rulings “entities with a broad geographic presence now face inconsistent exposure based upon a plaintiff’s domicile or courthouse address.” When used as a means of commerce, a website is the quintessential national business. Netflix cannot operate efficiently or effectively if, as has happened, one court holds that its site qualifies as a “place of public accommodation” while another comes to the opposite conclusion.

The only cure for court-created uncertainty is to amend the ADA. One federal court that embraced its limited role and refused to broaden the statute to websites has said as much: “[C]ourts must follow the law as written and wait for Congress to adopt or revise legislatively-defined standards.” No one, however, will be holding their breath for that to happen. In the meantime, DOJ should accede to the Senators’ demands in their 2018 letter and initiate a formal rulemaking or, at the least, participate as an amicus curiae in cases to encourage uniformity in the jurisprudence. That’s far from ideal, but as the old saying goes, the perfect should not be the enemy of the good.

Also published by on WLF’s contributor page.