Part I: Will the Supreme Court decide to hear the case?
Among the thousands of digital accessibility cases filed in federal and state courts each year, many are watching one case with particular interest: Domino’s Pizza LLC v. Guillermo Robles.
In January of this year, the U.S. Court of Appeals for the Ninth Circuit found that Title III of the Americans with Disabilities Act (ADA) and California’s Unruh Civil Rights Act (UCRA) apply to Domino’s websites and mobile apps. The Ninth Circuit sent the case back to the District Court to determine whether Domino’s provides patrons with disabilities effective communication and full and equal enjoyment of its products and services through its website and mobile apps. But before the case could be sent back, Domino’s asked the U.S. Supreme Court to review the decision. While it may initially appear that this case could result in a crystal clear decision on the question of the ADA’s applicability to digital accessibility, our legal crystal ball tells us that it is unlikely to provide exact answers, if any, and will not significantly alter the legal and other liability faced in the digital accessibility space.
In this first of a series of entries following this case, we ask: Will the Supreme Court even hear the case? Maybe, but it’s a long shot.
Before the Supreme Court will even hear argument on the merits of a case, it must hear from the parties on whether to spend time on the case at all – i.e., whether to issue a writ of certiorari. The Court has great discretion on whether it will entertain a case. Each year, the Court is asked to review nearly 7,000 cases, of which it will agree to hear and decide merely 2% (somewhere between 100-150 cases), meaning the vast majority of decisions by appellate courts remain intact. The Court is responsible for reviewing a wide variety of cases of national importance involving constitutional matters, criminal procedure, and the many federal statutes governing innumerable activities across the United States. The Court generally hears only one or two civil rights cases each Term and has only reviewed a few non-employment ADA cases over the past 30 years. So, statistically speaking, it is very unlikely to use its limited resources here.
The case is a long shot for other reasons. To be heard, a case must be “cert-worthy.” That means generally that the case must be of national significance or conflict among appellate courts exists. On June 13, 2019, Domino’s argued both in its Petition for a Writ of Certiorari (Petition) – that (1) there has been an explosion in digital accessibility litigation, the Congress did not intend, without clear standards, by surf-by plaintiffs at the great expense to businesses; and (2) the U.S. Courts of Appeals have provided only conflicting guidance, so the Supreme Court should clearly articulate that the ADA does not apply to websites and mobile apps. We expect Mr. Robles to argue in response in his Brief in Opposition (BIO) on July 15, 2019 that (1) the ADA has long required effective communication and full and equal enjoyment of goods and services; (2) the ADA’s requirements were designed to apply regardless of the medium, in person or remotely; (3) that public accommodations like Domino’s have long been on notice of these obligations, including the DOJ’s 2010 rulemaking; and (4) that real people are harmed by the ubiquity of digital inaccessibility and need adequate recourse. Mr. Robles is likely to also argue in his BIO that no real conflict exists among federal Circuit Courts – that the Petition argues with a “sleight of hand” that a conflict among federal appeals courts exists because of some antiquated cases involving the application of the ADA to insurance policies and the Court’s intervention is premature if not unnecessary. While the Court may wrestle with the first question, in today’s omnipresent digital world, the argument for conflict among federal appeals courts on the question of the application of the ADA to websites and mobile apps by analogy to insurance policy cases decided decades ago is thin. There are many instances in the ADA that allow for flexibility, to which Mr. Robles will point, such as the requirement that public accommodations like pizza companies utilize appropriate auxiliary aids and services which are necessary to ensure effective communication with persons with disabilities, including “accessible electronic and information technology,” which was added by the DOJ in 2010 to its Title III regulations, see 28 U.S.C. § 36.303(b), to explicitly require digital accessibility by public accommodations.
The Court is likely to be influenced by other parties as well. We expect to see a number of amicus briefs – or “friend of the court” briefs – during the cert stage considering nearly a dozen were filed by many industry and disability organizations when the case was heard by the Ninth Circuit last year. (We are likely to see industry briefs asking for cert to be granted at this stage, and the bulk of the disability and advocacy community to file their briefs during the merits stage if the case gets there.) We also believe it very likely that the DOJ will choose to weigh in on this petition because the DOJ has a special role in enforcing Title III of the ADA and has engaged in digital accessibility enforcement in the past. Because the DOJ has consistently stated that Title III covers the website and mobile app services of public accommodations and the attenuated applicability of the insurance policy cases, we expect the DOJ to argue that cert should not be granted in this case.
Once the briefing is complete at the cert-stage, the Justices will meet in Conference, and for the case to proceed to the merits phase, at least 4 of the 9 Justices must agree to hear the case. A decision whether to hear the case is likely to be made late this summer. Any briefing on the merits of the case would occur this fall and oral argument likely to occur next year.
As we will discuss in future parts series, we recommend that you don’t hold your breath. Even if the Supreme Court decides to hear Domino’s v. Robles, (spoiler alert) it is unlikely to find that Title III of the ADA does not apply to the websites and mobile apps of public accommodations, and even if it did, it’s unlikely to dramatically change the need for good digital accessibility practices because of the patchwork of laws requiring accessibility, it is good (and necessary) business practice, and the disability community recognizes the importance of this issue and views it as critical to fully realizing independence and equality in today’s world. We stand ready to provide you with the support you need to make your products accessible.
Part II: If the Supreme Court hears the case, will it find the ADA does not apply to the websites and mobile apps of public accommodations?
This one’s a bit trickier, but probably not.
The arguments Domino’s advances in its Petition – many of which will also be made on the merits – are many of the same arguments that have been made to federal courts for decades on this topic. In particular, Domino’s argues that Congress could not have possibly envisioned that the ADA would apply to millions of websites and mobile apps and wrote the statute in a way that applies only to physical places. This argument has been rejected by the vast majority of courts to have taken up the question. ….
If the Supreme Court finds that Title III does not apply to websites and mobile apps, does that mean my websites and mobile apps do not have to be accessible?
This one is easy. The answer is resoundingly a no.
If you are concerned that your websites and other digital resources aren’t accessible, we invite you to contact Level Access today for a complimentary Risk Assessment. This Assessment will let you know how they are—and, more importantly, aren’t—accessible to users with disabilities, as well as work with you to determine proper next steps.