News, Insights & Events

Is Your Company Website and Mobile App Accessible to the Visually Impaired? | FFS Insights

January 31, 2019

Arash Beral and Kelsey Hotchkiss

View Full Article

Building on a string of victories across the country, visually impaired persons secured a noteworthy win in a January 15, 2019 decision by the Ninth Circuit Court of Appeals.  The Court applied the “full and equal” access provisions of the Americans with Disabilities Act (“ADA”) to all auxiliary services of places of public accommodation (facilities, both public and private, used by the public), regardless of their physical or virtual location, thus implicating websites and mobile apps. 

Guillermo Robles, a blind man, filed suit in the Central District of California, alleging that he and other visually impaired persons could not access Domino’s website, which he alleged did not comply with the Web Content Accessibility Guidelines (“WCAG”) 2.0, in violation of the ADA.  Robles argued that the WCAG 2.0 guidelines, standards for website accessibility that were widely adopted by private industries and governmental agencies, should be applied to websites of public accommodation, such as Domino’s.  At the District Court level, the Honorable S. James Otero dismissed the case as violating Domino’s right to due process. The Ninth Circuit, however, disagreed.   

The Court reasoned that under the ADA, any auxiliary aids and services a public place of accommodation used to ensure “effective communication” with disabled individuals applied to all services offered, regardless of their physical or virtual location.  Since Domino’s website and app “connect” customers to Domino’s physical restaurants, they constitute communications under the ADA and must be fully accessible to the visually impaired.  Under the opinion, the services of the place of public accommodation—which accommodate disabled individuals, not solely the services in the business—are obligations encompassed within the ADA. 

Next, the Court rejected Domino’s due process argument, holding that Domino’s had adequate notice of its obligations towards disabled individuals under the ADA, the provisions of which were not “so indefinite” that its standards were incomprehensible.  Domino’s obligation to provide disabled individuals with “full and equal enjoyment of their goods” did not necessitate a “blueprint for compliance with” the ADA’s regulations.  On these grounds, the primary jurisdiction doctrine did not compel the Court to stay the matter until the DOJ issued further specifications. 

The Ninth Circuit’s holding has a significant effect on all places of public accommodation regarding  the services they must provide to disabled people to ensure their full and equal enjoyment of that business.  At a minimum, businesses serving the public must ensure that their websites and mobile apps are compatible with screen-reading software, and provide persons with visual impairments complete access to their online services.  The Court distinctly held that “[t]his requirement applies to Domino’s website and app, even though customers predominantly access them away from the physical restaurant,” drawing a crucial nexus between the physical location of the business and any auxiliary services that “facilitate[s] access to [its] goods and services.”

Online businesses without a brick-and-mortar structure also cannot completely ignore the Court’s ruling.  Other federal courts have held “places of public accommodation” to include the ever-growing number of websites that strictly provide services in a residence, such as Overstock, eBay, and Revolve Clothing, without physical retail stores.  Applying both holdings to these businesses, these retailers may also be required to enable screen-reading software on their sites and mobile apps. 

As with each new decision involving rapidly developing technology, the Ninth Circuit’s opinion in the Robles matter causes ripple effects throughout many industries.  If your company maintains a website and/or mobile app, it should immediately confirm that all industry standards, i.e., WCAG 2.0, are being met.

***

This article is made available for educational purposes and to provide general information on current legal topics, not to provide specific legal advice. The publication of this article does not create any attorney-client relationship and should not be used as a substitute for competent legal advice from a licensed professional attorney.