In addition to an FTC complaint for unfair and deceptive advertising practices, digital marketers should be aware of other, non-traditional, legal landmines that have been making news and attracting the attention of the plaintiffs’ bar of late.
In one of the first appellate decisions pertaining to disabled individuals’ access to websites and mobile applications under the Americans with Disabilities Act, the Ninth Circuit has sent a clear and unmistakable message to owners and operators that the failure to implement compliance measures designed to ensure equal access are at increased risk.
In Robles v. Domino’s Pizza, LLC (9th Cir. Jan. 15, 2019), the plaintiff alleged violations of the ADA and California’s Unruh Civil Rights Act because he was purportedly unable to order a pizza online. According to plaintiff, who was only seeking a court order mandating defendants compliance, the website and mobile app were not designed to work with screen reader software and, as a result, defendant failed to comply with the Web Content Accessibility Guidelines version 2.0.
A federal judge in California held that Title III of the ADA, which prohibits discrimination against disabled individuals in places of public accommodation, applied to Domino’s website and app. Importantly, the court then stated that requiring Domino’s to comply with the ADA violated its due process rights because the U.S. Department of Justice has not issued any standards regarding website and mobile app accessibility.
The Ninth Circuit agreed with the lower court ruling that the ADA applies because public accommodations must provide auxiliary aids and services for disabled individuals. It then rejected the lower court’s ruling regarding defendant’s due process rights because it was already on fair notice of ADA compliance. It also opined that the DOH may have opted not to provide specific guidance so as to permit entities with “maximum flexibility” when deciding how to comply.
The case has been remanded to the District Court to determine whether defendant’s website and app provide disabled individuals with adequate auxiliary aids and services to enable effective communication.
Contact the author at firstname.lastname@example.org If you are interested in learning more about this topic, and how to minimize exposure under the ADA and state statutes in this area,
Richard B. Newman is an FTC investigations and compliance attorney at Hinch Newman LLP.