By Frank Cruz-Alvarez, a Partner in the Miami, FL office of Shook, Hardy & Bacon L.L.P., with Talia M. Zucker, a Partner with Shook, Hardy & Bacon L.L.P. in its Miami, FL office. Mr. Cruz-Alvarez is the WLF Legal Pulse‘s Featured Expert Contributor on Civil Justice/Class Actions.
Enacted in 1990, Title III of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12181 et seq., provides, in relevant part:
No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.
With specific rules governing who must comply and how, implementation of this prohibition by qualifying entities, at least in the beginning, was a relatively modest concept in practice. Unbelievably, despite its broad coverage and specific requirements, the ADA has never discussed the Internet despite its ubiquity in the 21st century. As a result, application of this prohibition as it relates to accessibility of websites or mobile apps has become increasingly controversial and the target for litigation.
One such piece of litigation started in 2016 when Guillermo Robles sued Domino’s Pizza LLC in the U.S. District Court for the Central District of California when he was unable to complete his custom pizza order using the Domino’s website or mobile app. Robles, who is blind, alleged that Domino’s violated Title III because its website and mobile app were not compatible with the screen-reading software he used to access the Internet. The district court granted Domino’s motion to dismiss finding that while the ADA applied to websites and mobile apps maintained by brick-and-mortar places of public accommodation, it would be a due process violation if Domino’s website and mobile app were required to comply with Title III when there is no guidance on how to do so.
On appeal, the Ninth Circuit reversed, holding that the Domino’s website and mobile app are subject to Title III. In so ruling, the Ninth Circuit opined that Title III imposes isolated accessibility requirements for Domino’s website and mobile app because they “connect customers” to the goods and services of Domino’s physical locations, which are places of public accommodation governed by the ADA.
On the heels of a ruling that extends the reach of Title III into the Internet, a feat the ADA has not yet addressed, and further worsens circuit splits on the issue, Domino’s filed a Petition for Writ of Certiorari on June 19, 2019, hoping for clarity on an issue that affects companies across every industry. In support of its petition, Domino’s raised three points: (1) the Ninth Circuit’s decision exacerbates a circuit split over whether website inaccessibility violates Title III, (2) the question presented is recurring and important, and (3) the Ninth Circuit’s decision is wrong.
As to the first point, the First, Second, and Seventh Circuits hold that website-only businesses are subject to Title III liability based on inaccessibility. See Carparts Distribution Ctr., Inc. v. Auto. Wholesaler’s Ass’n of New Eng., Inc., 37 F.3d 12, 19 (1st Cir. 1994); Pallozzi v. Allstate Life Insurance Co., 198 F.3d 28 (2d Cir. 1999); Doe v. Mutual of Omaha Ins. Co., 179 F.3d 557, 559 (7th Cir. 1999); Morgan v. Joint Admin. Bd., Ret. Plan, 268 F.3d 456, 459 (7th Cir. 2001). Conversely, the Third, Sixth, and Ninth Circuits have ruled that website-only businesses cannot face Title III liability. See Parker v. Metropolitan Life Ins. Co., 121 F.3d 1006, 1010 (6th Cir. 1997); Ford v. Schering-Plough Corp., 145 F.3d 601, 614 (3d Cir. 1998); Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104, 1114 (9th Cir. 2000).
This same line of cases are also divided on whether Title III requires websites maintained by companies that also offer their goods and services at brick-and-mortar locations to comply with accessibility requirements. Once again, the First, Second, and Seventh Circuits hold that any company offering a good or service to the public, whether online or at a physical location, is considered a standalone public accommodation subject to Title III. In so ruling, the Seventh Circuit explained that, “[t]he site of the sale is irrelevant to Congress’s goal of granting the disabled equal access to sellers of goods and services. What matters is that the good or service be offered to the public.” Morgan, 268 F.3d at 459; see also Carparts, 37 F.3d at 19; Pallozzi, 198 F.3d at 32–33.
The Third, Sixth, and Eleventh Circuits, however, only impose Title III liability if the disabled individuals lack equal access to the goods or services of the physical place of public accommodation. Ford, 145 F.3d at 613; Parker, 121 F.3d at 1011; Rendon v. Valleycrest Productions, Ltd., 294 F.3d 1279 (11th Cir. 2002). These cases focus on whether a website, mobile app, or any specific means of access, hinder a person’s overall access to the goods and services provided by the brick-and-mortar public accommodation. The Ninth Circuit’s decision squarely conflicts with the Third, Sixth, and Eleventh Circuits.
As Domino’s points out in its second point, the Ninth Circuit’s decision will effectively apply nationwide because as the largest circuit, nearly every national business and non-profit offers its goods and services at physical locations in the Ninth Circuit, as well as on websites and mobile apps. If this issue lingers, web-accessibility litigation will continue to grow, particularly in the Ninth Circuit where plaintiffs know the law is on their side and companies will struggle to comply. Furthermore, these lawsuits are expensive, as are plaintiffs’ accessibility demands. These burdens push businesses and non-profits to settle, or worse, eliminate online offerings, a result that harms all consumers.
In support of its third point, Domino’s explains the improper basis upon which the Ninth Circuit based its opinion. The plain text of Title III which states that it covers, “any person who owns, leases (or leases to), or operates a place of public accommodation” confines the scope of “public accommodations” to physical locations. 42 U.S.C. § 12182(a) (emphasis added). Moreover, Title III’s definition of “public accommodation” sets forth twelve categories of places, all of which are physical locations (e.g., “inn,” restaurant,” motion picture house,” “bakery”). It would be extremely peculiar to conclude that Congress intentionally listed twelve categories of physical locations, but overlooked intangible locations such as websites and mobile apps.
More to the point, Title III does not demand full accessibility for every means of accessing goods or services a public accommodation offers to its consumers. Rather, Title III contemplates “the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.” 42 U.S.C. § 12182(a). This does not mean that each and every means of accessing goods and services of a public accommodation must be accessible in isolation. It simply means that a consumer is entitled to “full and equal enjoyment” of the goods and services, whether it be, for example, in a physical location, on a website, or through a telephone hotline. To hold otherwise would require rewriting the language of Title IIII.
The bottom line is the Ninth Circuit’s opinion misreads Title III and effectively imposes unwritten and unreasonable constraints on companies as it applies to websites and mobile apps. If not addressed, companies, both big and small, will be forced to expend incredible amounts of money, time, and resources to try to comply with accessibility requirements in the online environment that do not exist. Now is the time for the Court to intervene and settle a conflict that has been plaguing the circuits and districts for years.