Hunton Employment & Labor Perspectives

The U.S. Supreme Court declined to hear a case on October 7 that likely would have clarified the scope of Title III of the Americans with Disabilities Act (the “ADA”) related to the operation of virtual platforms like websites and applications by private businesses.

As we previously discussed, the absence of clarity regarding the meaning of “place of public accommodation” in Title III of the ADA has produced inconsistent rulings in the courts regarding access to private businesses’ websites and other virtual platforms.  The crux of the issue is that neither Congress nor the Department of Justice (“DoJ”), the agency primarily responsible for enforcing the ADA, have dusted off the nearly 30-year old law to address the realities of 21st Century e-commerce.  Consequently, the ambiguity in the definition, and the uncertainty about the types of businesses to which Title III applies, have made it difficult for businesses to determine what steps to take to make their virtual platforms accessible to individuals with disabilities, if any.  In short, the ADA is an analog law existing in a digital world.

The consensus is that virtual platforms, including websites and web-based and mobile applications, are within the scope of Title III, but the federal courts disagree regarding whether Title III’s definition of “place of public accommodation” is limited to physical spaces.  Some courts find that a website can be a place of public accommodation independent of any nexus to a physical space like a brick and mortar storefront.  Others have found that places of public accommodation must be physical places, but that goods and services provided by a public accommodation (which may include through websites) may fall within the ADA if they have a sufficient nexus to a physical location.

We previously discussed the Ninth Circuit’s decision related to Title III in the case of Robles v. Domino’s Pizza, LLC here.

Domino’s Pizza, LLC (“Domino’s”) subsequently file a petition for a writ of certiorari with the U.S. Supreme Court on June 13, 2019, asking the Supreme Court to decide the question:  “Whether Title III of the ADA requires a website or mobile phone application that offers goods or services to the public to satisfy discrete accessibility requirements with respect to individuals with disabilities?”

Domino’s petition noted:

“The ADA was enacted in 1990, in the age of landlines and snail mail.  Congress designed Title III to ensure that individuals with disabilities obtain equal access to goods and services available at a wide range of physical places open to the public, which the statute terms ‘places of public accommodation.’ That mission has succeeded in no small part because Congress legislated at length and in hyper-specific detail about which physical places must be accessible, and how those ‘places of public accommodation’ can ensure accessibility.”

However, since 1990:

“the Internet has become ubiquitous, and courts have struggled to fit the square peg of the web into the round hole that is Title III . . . In the face of this uncertainty, plaintiffs have stepped in to fill the void.  In 2018 alone, litigants filed over 2,250 federal lawsuits asserting ADA violations based on web-site inaccessibility, nearly tripling the number in 2017. . . Plaintiffs, often repeat litigants, have targeted nearly every type of industry and non-profit . . .  Their suits claim that these defendants’ websites were inadequately accessible to individuals with disabilities, and that this alone triggers ADA liability. . . This Court’s review is imperative to stem a burdensome litigation epidemic.”

Domino’s reply brief underscored that “[f]ive amici [the Chamber of Commerce of the United States of America, Washington Legal Foundation, Retail Litigation Center, Inc., Cato Institute, and the Restaurant Law Center], encompassing 500,000 restaurants, 300,000 businesses, and 18,000 retailers” supported Domino’s petition, and all “stress the impossibility of guessing what accessibility means in the online environment.”  It went on:  “This case is a clean vehicle to resolve two related circuit conflicts concerning critical questions about Title III’s applicability to the Internet.  Only this Court’s immediate intervention can resolve these monumentally important legal issues.”

The Supreme Court declined to hear Domino’s petition.  Unfortunately, the Supreme Court’s decision means that businesses will have to wait for Congress or the DoJ to act for more clarity on Title III’s scope.  Therefore, a business that operates virtual platforms and conducts business across multiple states will have to continue to navigate the patchwork of court decisions that interpret the law, and will have to continue to factor this uncertainly into their evaluation of risk related to their virtual platforms.  We will continue to monitor any new developments in the realm of ADA compliance.