Margo Brandenburg, Associate Member, University of Cincinnati Law Review
Everyone should have equal access to pizza. The Americans with Disabilities Act (“ADA”) “provide[s] a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” Places of public accommodation, like Domino’s Pizza (“Domino’s”), unlawfully discriminate on the basis of disability when they fail to take the necessary steps to ensure that disabled individuals are not treated differently than others due to the absence of auxiliary aids or other services. In 2019, Domino’s Pizza was the defendant in a Ninth Circuit case, where a blind individual alleged the pizza retailer violated the ADA by not providing him with a website that was accessible to him, given his disability. Robles v. Domino’s Pizza discusses the standard for when a retailers’ website is so inaccessible that it is in violation of the ADA.
II. Robles v. Domino’s Pizza, LLC
Domino’s Pizza allows customers to purchase pizza and other food items via their website and mobile app. Through the website and app, customers can schedule “at-home delivery or in-store pickup, and receive exclusive discounts.” Guillermo Robles, a blind man, sued Domino’s in September 2016, seeking both damages and injunctive relief because he could not use Domino’s website. Robles alleged that Domino’s “failed to design, construct, maintain, and operate its website and . . . [its app] to be fully accessible to him.” He claimed relief based on Domino’s violation of the American with Disabilities Act and California’s Unruh Civil Rights Act (“UCRA”). His accessibility issues stemmed from the website’s incompatibility with his screen-reading software, he contended.
A. District Court & Ninth Circuit Conclusions
When this case was brought before the Central District Court of California, the district court found that the ADA indeed applies to websites and apps. However, the district court dismissed the case without prejudice based off of the primary jurisdiction doctrine. Its reasoning was based on the fact that the Department of Justice (“DOJ”) had not yet offered its guidance on the topic. In the district court’s opinion, only regulations created by the DOJ could cure the due process concerns at issue when a court attempts to force individuals or institutions to abide by the ADA.
Robles appealed to the Ninth Circuit Court of Appeals. The Court of Appeals first determined whether the ADA applied to Domino’s website and mobile app. In its determination, the court discussed that Domino’s website and app provided other methods to access to the goods that Domino’s sells its customers from its physical restaurant. This nexus between the physical Domino’s restaurant and the website and mobile app is what makes these other methods to buy Domino’s goods places of public accommodation. The ADA “applies to services of a place of a public accommodation, not services in a place of public accommodation,” the court noted. The provisions of the ADA applied because the court determined the website and mobile app were places of public accommodation that connect consumers to the goods Domino’s sells.
Next, the Ninth Circuit determined whether the application of the ADA to Domino’s website and mobile app violated due process. The court found that Domino’s has received enough notice that its app must allow disabled customers to experience “full and equal enjoyment” of the goods offered by the app. Further, the court added that the Constitution does not require Congress or the Department of Justice to explicitly state how Domino’s should comply with the provisions of the ADA and that the regulations were designed to be flexible. Thus, the court determined that due process is not offended by applying ADA regulations to Domino’s website and mobile app.
Lastly, the court considered whether the primary jurisdiction doctrine should have been invoked. The primary jurisdiction doctrine allows court to determine that “an otherwise cognizable claim implicates technical and policy questions that should be addressed . . . by the agency with regulatory authority over the relevant industry rather than by the judicial branch.” However, even when agency guidance would be helpful, courts should not invoke primary jurisdiction over something when the applicable agency is aware of the subject of litigation but has not expressed an interest in resolving it. Additionally, primary jurisdiction should not be invoked when the agency referral may prolong a ruling that the respective court is able to make itself. The court found that because the DOJ is aware of the subject of the litigation in this case, has expressed no interest in resolving it, and DOJ intervention would unduly delay the resolution of this case, the primary jurisdiction doctrine should not be invoked.
The Ninth Circuit provided no opinion on whether or not Domino’s website and mobile app complied with the requirements of the ADA. It determined that this question should be resolved by the district court after discovery. Thus, the Ninth Circuit reversed and remanded the case back to the district court.
B. Supreme Court of the United States Conclusion
Domino’s filed a petition for writ of certiorari to Supreme Court of the United States in June 2019. Domino’s argued, among other things, that when Congress created the ADA in 1990, website use was very minimal and mobile apps did not exist. According to counsel for Domino’s, the DOJ abandoned efforts to provide specific guidelines on the ADA’s application to websites in 2017. As a result of the DOJ’s abandonment, the plaintiffs in this case have sued many other retailers with ADA incompliant websites. Domino’s brief stated that if the Ninth Circuit’s decision is left unaddressed by the Supreme Court, the Ninth Circuit decision will set a nationwide mandate, and a “tsunami of litigation” will ensue around the country. The Supreme Court denied Domino’s petition for writ of certiorari.
While the Supreme Court’s denial of certiorari does not explicitly mean that the Supreme Court is in agreement with the Ninth Circuit’s conclusion in Robles, it is a strong affirmative indication of such agreement. Unless there becomes a circuit split on whether retailers’ websites should comply with the ADA, it is unlikely that the Supreme Court will address this question again. Thus, the Ninth Circuit’s conclusion will stand.
It’s likely that, on remand, the district court in Robles will find that Domino’s website and mobile app is not compliant with the ADA standards. When a disabled person cannot access a retailer’s website or mobile app, this creates a real disparity in the treatment of that individual. This discriminatory treatment by public accommodations is what the ADA seeks to prevent. Despite the fact the DOJ has withdrawn efforts to create solid ADA regulations on business websites, retailers should still be willing to be make efforts to become ADA compliant.
To avoid the “tsunami of litigation” that Domino’s suggested in their brief, retailers should reformulate their websites to be in compliance with the standards of the ADA. Recreating retailer websites is easier said than done, though. For small to medium size businesses, the costs associated with hiring a knowledgeable website consultant are steep; an assessment of a websites’ ADA compatibility can cost upwards of $50,000. Once the business website becomes accessible to disabled individuals, though, retailers can begin cashing in on the benefits of being ADA compliant. In 2018, the annual discretionary spending of disabled persons totaled nearly $200 billion. Thus, if these businesses reformulate their websites, they could increase business revenues by a significant amount by allowing disabled individuals to access their websites to purchase goods or services.
While the costs may be high to reformulate websites, there must also be an evaluation of the cost of inaction. One example that represents the even more substantial high cost of a business not doing anything to remediate its ADA incompliance is presented in National Federation of the Blind v. Target Corporation. There, the court awarded the damages to the class of blind individuals nearing $6 million, legal fees to the plaintiff in over $3 million, and other undisclosed defense fees. This case goes to show that the costs of retailer inaction may be enormous when being sued by a class of disabled individuals, even for larger businesses like Target.
The costs of legal damages and other fees from lawsuits generally outweigh the price of reformulating businesses’ websites to become ADA compliant, so businesses should move forward with this in mind. This means that businesses should work to find consultants that will assist in website reformulation, rather than just wait around for a possible lawsuit. In turn, this will allow for disabled individuals to utilize business’ websites, further increasing revenue for ADA complaint retailers.
Due to the increased number of class action suits being filed against retailers’ websites, the legal landscape is changing, putting more weight on accessibility. Because of the strong public policy consideration of providing aid to disabled persons, Ninth Circuit came to the correct conclusion in Robles,and the Supreme Court of the United States agreed. Retailer websites or mobile apps that are inaccessible to disabled individuals go against the clear purpose of the ADA. Thus, retailers that sell goods or services on websites and mobile apps need to begin to comply with the provisions of the ADA to avoid consumer lawsuits against them for being inaccessible. While reformulating websites may be time-consuming and costly up front, retailers will save money in the long run by avoiding the damages and other legal fees that go along with being sued. Retailers may even gain some new customers, as well.
Robles v. Domino’s Pizza, LLC, 913 F.3d 898, 904 (9th Cir. 2019) (quoting Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581, 519 (1999)).
Id. at 898.
Robles v. Domino’s Pizza, LLC, 913 F.3d 898, 902 (9th Cir. 2019).
Id. at 902.
Robles v. Dominos Pizza LLC, 2017 U.S. Dist. LEXIS 53133 (C.D. Cal., Mar. 20, 2017).
Robles v. Domino’s Pizza, LLC, 913 F.3d 898, 903-904 (9th Cir. 2019). The primary jurisdiction doctrine “allows courts to stay proceedings or dismiss a complaint without prejudice pending the resolution of an issue within the special competence of an administrative agency.” Id.at 909-910.
Id. at 903-904.
Id. at 904.
Id. at 905.
Id. (quoting Nat’l Fed’n of the Blind v. Target Corp., 452 F. Supp. 2d 946, 953 (N.D. Cal. 2006)) (emphasis in original).
Id. at 905-906.
Id. at 906.
Id. at 909.
Id. at 909-910.
Id. at 910.
Domino’s Pizza LLC v. Robles, No. 18-1539 (U.S. petition for cert. filed June 13th, 2019).
Robles v. Domino’s Pizza, LLC, 913 F.3d 898 (9th Cir. 2019).
Domino’s Pizza LLC v. Robles, No. 18-1539 (U.S. petition for cert. filed June 13, 2019).
Mark Pullham, The ADA Litigation Monster, The City Journal (Spring 2017) https://www.city-journal.org/html/ada-litigation-monster-15128.html.
2007 U.S. Dist. LEXIS 30513, (N.D. Cal. Apr. 25, 2007).
The Business Case for Digital Accessibility, supra note 39.
913 F.3d 898.