In ignoring Domino’s appeal, the Supreme Court opens up the door for lawsuits challenging the accessibility of websites and mobile apps to people with disabilities

It’s no secret that the plaintiff bar has created a cottage industry using claims of technical violations of American with Disabilities Act (ADA) as the basis for lawsuits against businesses on the grounds that they must make their physical locations accessible to people with disabilities. Seeking to take advantage of technical violations, some individuals have filed multiple lawsuits on the same day and hundreds over the course of years against a battery of businesses in an effort to engender settlements from those defendants on the receiving end of the complaints. Now, nearly 30 years later after the ADA has become law, businesses may face claims regarding accessibility of their digital storefronts thanks to a decision handed down yesterday by the United States Supreme Court.

Specifically, the Supreme Court gave the green light for a blind man to sue Domino’s Pizza over challenges faced when attempting to access the pizza chain’s website and mobile app. The Ninth Circuit Court of Appeals had ruled earlier that the ADA applies to Domino’s website despite the absence of any specific statutory guidelines for business to follow and that the claim that alleged inaccessibility impeded blind customers from accessing the goods and services offered at physical franchises may proceed. In a closely watched decision, the Supreme Court rejected an appeal from Domino’s, letting the Ninth Circuit ruling stand. In doing so, the Ninth Circuit’s ruling represents the first time a federal court of appeals has ever decided whether Title III of the ADA applies to a business’s website or mobile apps.

“While the United States Supreme Court is letting the Ninth Circuit ruling stand, that doesn’t mean the issue is settled,” said Andrew Kessler, Partner in the Philadelphia office of Wood, Smith, Henning & Berman. “If another federal appeals court were to split from the Ninth Circuit ruling, the Supreme Court could decide to rule on the matter itself.” In the interim, Kessler noted a immediate spike in discussions with business clients contacting the firm immediately after the ruling seeking out risk management and advice given the cloudy future. Kessler, widely regarded as a leading attorney defending ADA matters recently resolved over 50 cases involving financial institutions with similar online accessibility allegations.

The case in question revolved around Guillermo Robles, a blind man proficient in using JAWS, or “Job Access With Speech” — the most popular screen-reading software for Windows-based computers. To accommodate this screen-reading software, graphics and embedded hyperlinks on websites typically include alternative text (known as “alt text”) — a description of the image that appears when a cursor floats over it or screen-reading software detects it. Given the proliferation of lawsuits filed across the nation, many businesses include alt text on their sites and follow other standards to ensure their websites and apps are accessible. However, the Domino’s website did not have alt-text at the time Robles tried to use it. At the same time, Robles also connects to the internet via his iPhone with the help of Apple’s Voice Over screen reading program. However, the unlabeled buttons on the Domino’s app did not conform to Apple’s iOS accessibility guidelines. Robles says he tried several times to order customized pizzas using Domino’s digital tools but was repeatedly stymied by their lack of accessibility features — despite Domino’s claim of cutting-edge digital services.

“With the proliferation of e-commerce, this truly is a new frontier in terms of the application of the ADA to the ability to navigate websites” said WSHB Partner Sheila Fix who has seen a dramatic rise in these actions which have taken businesses designing and implementing websites and mobile applications by surprise. Fix’ experience defending ADA claims throughout California ranges from retail facilities, restaurants, apartment complexes and homebuilders with model homes facing traditional architectural accessibility issues to small businesses tackling claims their mobile applications are inaccessible to sight-impaired individuals.

Let’s be clear, the ADA is an important piece of legislation that has allowed individuals to navigate physical spaces in public with ease and has had a dramatic impact on the quality of life,” said Stephen Henning, Co-Founder of WSHB. The ADA, signed into law in 1990, requires in Title III that businesses serving as “places of public accommodation” remove barriers to access for people with disabilities. Under the ADA, places of public accommodation include restaurants, theaters, retail stores and more. However, “the law does not explicitly address the internet or mobile apps, leaving businesses left guessing how the law applies to commercial websites,” said Henning. “This case is one of the first to test how the ADA applies to online shopping and ordering which understandably is fueling angst with our clients which have cyber exposure.”

“Without question, the number of web accessibility lawsuits has increased substantially in the last three years since Robles filed suit,” said Alicia Kennon, Partner in the WSHB Northern California office. “Practicing in the Ninth Circuit, I personally have seen a proliferation of this genre of suit against businesses who often learn about the ADA implications when they are first served with the lawsuit.” Many in the industry have been watching this lawsuit wind its way through the Supreme Court, particularly those defendants who have negotiated settlements or simply drop online offerings rather than shouldering the costs to achieve accessibility.”

Domingo’s had ample support for its position at the Supreme Court level, with support of the retail and restaurant industries which in their own court filings “stress the impossibility of guessing what accessibility means in the online environment.”

“Although we have monitored this issue and developments for years now helping anxious clients plan for and strategize compliance as the law has evolved in various jurisdictions across the nation,” said Robert Hellner, Partner in WSHB Dallas’s office, “the ruling further emphasizes the importance for companies to prioritize compliance and work closely with their attorneys and accessibility experts – sooner rather than later.”