Attorney Blog, Human Resources

No Clear Path Forward on the Applicability of the ADA to Websites

Attorney Harrison Oldham

In October, the Supreme Court of the United States denied Domino’s Pizza’s petition for review of a circuit court decision pertaining to the Americans with Disabilities Act (“the ADA”) applicability to Domino’s website. Domino’s requested that the Supreme Court review the Ninth Circuit’s decision holding that Domino’s must make its website accessible to persons with visual impairments under the ADA. The petition for certiorari was the first time the Supreme Court had been asked to consider the issue of website accessibility.

In this case, the plaintiff alleged that Domino’s violated Title III of the ADA, which governs places of public accommodation, because the pizza chain’s website and mobile application did not support special screen-reading software.

Title III prohibits discrimination “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 … operates a place of public accommodation.” The ADA includes in its definition of public accommodation “a restaurant, bar, or other establishment serving food or drink.”

Presently, the circuit courts are divided over whether a website can be a place of public accommodation. On the one hand, the Sixth, Ninth, and Eleventh Circuits hold that for a website to be subject to the ADA, there must be a “nexus” between the challenged service and the physical place of public accommodation. On the other hand, some circuits hold that websites, by themselves, can constitute places of public accommodation.

For example, a similar instance was decided in the Eleventh Circuit earlier this year. There, in Haynes v. Dunkin’ Donuts LLC, et al., a blind plaintiff alleged that Dunkin’ Donuts violated Title III of the ADA by failing to maintain a website compatible with any screen reading software for blind persons.  As a result, the plaintiff contended that he was denied the ability to access the goods and services offered on the website, including locating physical store locations and purchasing gift cards.  Dunkin’ Donuts moved to dismiss, arguing that although its stores are places of public accommodation, its website is not. The district court agreed, holding that the plaintiff failed to allege a “nexus between the barriers to access that he faced on the website and his inability to access goods and services at Dunkin’ Donuts’ physical store.”

In the underlying Domino’s suit, the plaintiff filed against Domino’s after unsuccessfully attempting to order customized pizzas online from a nearby Domino’s location. Though Domino’s argued that its website and mobile application were not “places” of public accommodation under Title III of the ADA, the district court found that the ADA still applied because the website and app were “auxiliary aids and services” that places of public accommodation must provide to make sure that people with disabilities are not excluded from accessing the business’s services. On appeal, the Ninth Circuit agreed with the district court and held that Domino’s website and mobile application facilitate access to its goods and services at places of public accommodation – the physical restaurants.

Because the Supreme Court denied certiorari, the Ninth Circuit decision stands, and the case against Domino’s can proceed in the lower courts. Unfortunately, for employers in some jurisdictions, this does not help clarify whether a website is a place of public accommodation, and if so, what the standards are for accessibility.

Despite the current lack of clarification, to help avoid claims of discrimination and make websites more accessible to the vision-impaired, employers and companies with websites related to places of public accommodations should ensure that their websites use text in a format compatible with screen reading software. Further, if a company uses videos on its website, it should consider including subtitles or transcripts for those with hearing issues.

About Harrison Oldham

Harrison grew up in Mansfield, Texas. He attended Texas A&M University for his bachelor’s degree, where he met his wonderful wife, Kelsey. After graduating magna cum laude from Texas A&M, he attended SMU Dedman School of Law, graduating with honors in 2012. Today, Harrison and his wife live in Dallas, Texas with their son, Teddy.

Since graduating from SMU Law, Harrison has worked exclusively in the field of business law. He has spent time in private practice and in-house, working with clients of every size; from single person startups to Fortune 250 companies. Today his practice focuses on serving the diverse needs of businesses and individuals throughout Texas. You can learn more about Harrison by visiting his website, at: http://lonestarbusinesslaw.com/.

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