ADA Compliance and Defense Blog
In September 2016, we published an alert that a group of plaintiff’s ADA lawyers had threatened a number of businesses – including hotels – with litigation claiming their websites failed to comply with “ADA Guidelines.” (Read ADA Compliance & Defense Lawyer: ADA Website Accessibility Lawsuits Escalate.) These lawsuits have since been filed with greater frequency.
Since then, a number of threats have turned into lawsuits seeking injunctive relief (website accessibility), a multiple of $4,000 minimum statutory damages under California’s Unruh Civil Rights Act (per visit to the website or from being deterred from visiting the website), attorneys’ fees and litigation costs.
Years ago, the Department of Justice (“DOJ”) adopted rules requiring all federal agency websites to conform to the WCAG 2.0 A and AA Success Criteria as a means of providing accessible websites to persons who are blind, low vision, color blind or who suffer cognitive disabilities. In 2010, the DOJ issued a Notice Of Proposed Rulemaking (NOPR) stating that it intended to adopt formal ADA Guidelines for state and local government agencies to meet when designing websites. The DOJ intended to adopt the WCAG 2.0 A and AA Success Criteria for state and local government websites. Justice then announced that it intended to adopt these same basic standards for private businesses’ websites. But the DOJ withdrew its NOPR and has yet to issue final rules regarding web access standards for state and local agencies or private businesses.
ADA website lawsuit violates due process
Last week, in what is a ground breaking decision of particular importance to the hospitality industry, the U.S. District Court for the Central District of California threw out a serial plaintiff’s lawsuit which alleged that Domino’s Pizza’s website violated the Americans with Disabilities Act (ADA) and related California anti-discrimination laws by not conforming to the WCAG 2.0 A and AA Success Criteria.
In recent months, this plaintiff and his law firm filed numerous identical lawsuits against hotels, restaurants, banks, retailers, and other businesses claiming that their websites and mobile apps could not be accessed by persons who are blind or of low vision who use screen reader software to access the internet. This lack of accessibility, they claim, violates the ADA and California’s Unruh Act by discriminating against persons with disabilities. The plaintiff sought injunctive relief requiring businesses to spend significant sums to bring their websites into conformity with WCAG 2.0 A and AA Success Criteria and to pay significant damages and attorney’s fees, according to numerous court filings. See Robles vs Domino’s Pizza, LLC, U.S. District Court for the Central District of California Case No. CV 16-06599 SJO (SPx) March 20, 2017.
After the lawsuit was filed, Domino’s placed banners on its website and mobile apps advising customers to call a toll-free hot line if they experienced any difficulties accessing these online services. Domino’s then moved to dismiss the lawsuit.
In a carefully thought out 12 page opinion, a Los Angeles federal Judge granted Domino’s Motion to Dismiss the case finding that to hold a business to the rigorous standards of the WCAG 2.0 A and AA Success Criteria when the DOJ has not formally adopted ADA Guidelines and companies have invested substantial sums in designing their websites under particular operating assumptions violated due process. The case was dismissed.
The Court found Domino’s due process challenge to be meritorious because plaintiff sought to impose on all regulated persons and entities a requirement that they “comply with the WCAG 2.0 Guidelines” without specifying a particular level of success criteria and without the DOJ offering meaningful guidance on this topic. …This request flies in the face of due process” the Court concluded.
This decision, which has immediate implications for all pending and threatened cases alleging the same ADA violations will be appealed. In fact, in communications with plaintiff’s counsel today, he said the Notice of Appeal will be filed shortly.
In the meantime, the Court noted that it is for Congress, the Attorney General and the DOJ to take action to set minimum web accessibility standards for the benefit of the disabled community, those subject to Title III, and the judiciary.
Although the case was dismissed and is the current precedent in California, plaintiff’s counsel is confident the decision will be overturned. Don’t be so sure! Today, he rejected my client’s offer to waive attorney’s fees and costs in exchange for a voluntary dismissal of the action.
So, what does this mean for website owners?
The Domino’s decision is a trial court opinion and will be appealed. It likely will not deter ADA plaintiffs’ attorneys from their pattern of filing serial website litigation. I expect the pace of website lawsuits to continue at the highest level we have ever seen until other trial judges reach similar conclusions.
Meanwhile, if you are working with your web developers to bring your websites into conformity with WCAG 2.0 A and AA Success Criteria, keep going. If you have not begun working on your website, it’s time to get started.
Website compliance with ADA is a big target for ADA plaintiffs’ lawyers now. It is so easy to fix this problem before it happens, you will kick yourself if you don’t avoid it while you can.
Martin H. Orlick is one of the top ADA defense lawyers in the country. He has helped hotels, restaurants, retailers, shopping centers, banks and other commercial property owners defend more than 600 ADA cases. In addition to defending lawsuits and governmental investigations, Marty’s team of ADA specialists focuses on enterprise-wide ADA compliance and litigation prevention, including facilities, website and operational compliance. Marty is the Chair of JMBM’s ADA Compliance & Defense Group, a Partner in JMBM’s Real Estate Group, and a member of the American College of Real Estate Lawyers (ACREL). For more information about ADA compliance and defense, contact Marty Orlick at 415.984.9667 or morlick@jmbm.com.