Ninth Circuit Ruling Bolsters ADA Website Accessibility Suits: Risks for Nonprofits

Plaintiff-friendly website accessibility opinions keep coming. The Ninth Circuit Court of Appeals recently decided in Robles v. Domino's Pizza, LLC that organizations' websites (including nonprofits' websites) may violate the Americans with Disabilities Act (ADA) if they are inaccessible to consumers with visual, auditory, or other disabilities.¹ While such litigation was already rapidly proliferating nationwide, Robles becomes one of the few federal appeals court decisions to specifically address website accessibility. It will undoubtedly shape future accessibility lawsuits, both in and outside of the Ninth Circuit, in several key respects.

Nonprofit organizations should take note of the Robles decision, and other recent website accessibility cases. Although thus far, website accessibility litigation has focused on for-profit company websites, many nonprofit websites are also subject to the ADA or state accessibility law. For example, a nonprofit website might qualify as a "place of public accommodation" under the ADA by falling into one or more of the following categories: a "sales establishment," "service establishment," "place of education," "place of public display," or "social service center establishment," among others.² This issue is especially noteworthy, since nonprofit organizations are increasingly relying on their websites and mobile apps to provide information and services to the public. Finally, nonprofits may want to consider website accessibility issues regardless of the risk of liability, because of their desire to reach out to those they may be able to serve from a mission perspective, to connect with potential donors, and for reputational reasons.

Different nonprofits will face different accessibility compliance issues, depending on a variety of factors, but below are four ways that Robles impacts nonprofit organizations across the board.

Due Process and Primary Jurisdiction Defenses Rejected

Most significantly, the Ninth Circuit overturned one of the few existing website accessibility decisions to embrace the due process and primary jurisdiction defenses against website accessibility claims. The California district court that initially dismissed the Robles case went against the majority of other courts by holding that organization websites cannot be deemed to violate the ADA until the Department of Justice (DOJ) provides specific guidance for website accessibility under Title III of the ADA.

For example, Domino's argued that it did not have fair notice of a legal obligation to comply with the private but widely used Web Content Accessibility Guidelines (WCAG). Rejecting the notion that liability was based improperly on the WCAG, the Ninth Circuit ruled that the ADA itself and existing guidance already articulate "comprehensible standards" that require covered websites to provide "full and equal" access to disabled consumers and ensure "effective communication" through "appropriate auxiliary aids and services."³

The Ninth Circuit also rejected the primary jurisdiction defense that website accessibility requirements should first be determined by the DOJ – an agency with regulatory authority and competence over the relevant industry. Unpersuaded, the Ninth Circuit highlighted that the "DOJ is aware of the issue" but "expressed no interest in [it]."⁴ As Venable has covered previously, in December 2017, the DOJ withdrew its proposed ADA rulemaking after nearly eight years of review. Waiting for the DOJ to provide guidance at some undetermined future date would make "undue delay" for the plaintiff "inevitable," the Ninth Circuit noted.⁵ Moreover, such "delay is 'needless,'" because "[c]ourts are perfectly capable of interpreting the meaning of 'equal' and 'effective.'"⁶

Nonprofits Can Be Ordered to Comply with WCAG

While the Ninth Circuit acknowledged that the WCAG are "private" standards developed by technology and accessibility experts, the Ninth Circuit recognized that the WCAG "have been widely adopted, including by federal agencies, which conform their public-facing, electronic content to WCAG 2.0 level A and level AA Success Criteria."⁷ Indeed, "[DOJ] has required ADA-covered entities to comply with WCAG 2.0 level AA (which incorporates level A) in many consent decrees and settlement agreements in which the United States has been a party."⁸

Interestingly, the Ninth Circuit did not rule that failure to comply with the WCAG per se violates the ADA. But the Ninth Circuit did hold that "the district court can order compliance with WCAG 2.0 as an equitable remedy if, after discovery, the website and app fail to satisfy the ADA."⁹ The Ninth Circuit observed that covered websites have "maximum flexibility in meeting the statute's requirements." Practically, however, Robles suggests that any ADA-covered website that is not WCAG-compliant is at risk of being ordered to become compliant.

Discovery Is Required to Determine ADA Compliance

The Ninth Circuit stated multiple times that "discovery" was required to determine "whether Domino's website and app provide the blind with effective communication and full and equal enjoyment of its products and services."¹⁰ For example, the Ninth Circuit held that "the mere presence" of a customer service telephone hotline, "without discovery on its effectiveness," was insufficient to warrant summary judgment for defendant.¹¹ Thus, Robles will make it harder for defendants to dispose of website accessibility cases before discovery. The expense and burden of such discovery will be important factors in deciding whether to litigate or settle a website accessibility case.

Nonprofits Have to Think About State Law Too

Robles exemplifies how nonprofits have to contend with not just federal, but also state law website accessibility requirements. Plaintiff Robles alleged violations of both the federal ADA, 42 U.S.C. § 12182, and California's Unruh Civil Rights Act (UCRA), Cal. Civ. Code § 51.

The UCRA differs from the ADA in various respects. For example, a web-only service with no nexus to a physical place of public accommodation is not subject to the ADA under Ninth Circuit precedent.¹² The UCRA, on the other hand, applies to any "business establishment," including certain nonprofits.¹³ This is particularly relevant to nonprofit entities that might not fall into one of the 12 ADA enumerated categories of a "public accommodation," because even if they are exempt from the ADA, they still may be covered by the UCRA.

The UCRA also includes statutory and actual damages among its available remedies, whereas the ADA does not authorize damages. Furthermore, whereas ADA claims can be defended in federal court where defendants often have more protection, some website accessibility plaintiffs sue under just the state statute to keep the case in state court.

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Venable previously covered here what organizations can do to reduce their website accessibility risk. In the wake of Robles, the case for undertaking a WCAG compliance audit and making any necessary website changes has only grown. Nonprofit organizations should further consider regular WCAG compliance audits to ensure their websites remain accessible as additional website content is added and as technology and standards (WCAG or otherwise) evolve. In addition to litigation risk, nonprofits may want to evaluate the mission-based and reputational reasons for website accessibility, as some organizations may choose to make their websites accessible to better serve their clients and supporters. Finally, because there are so many accessibility audit tools and services out there and choosing the right ones can be daunting, organizations should consider retaining legal counsel with experience in these issues.

1. 913 F.3d 989 (9th Cir. 2019).
2. 42 U.S.C. § 12181(7).
3. 913 F.3d at 906-909 (quotations omitted).
4. Id. at 910 (emphasis removed) (quotations omitted).
5. Id.
6. Id. at 910-911.
7. Id. at 902 n.1.
8. Id.
9. Id. at 907.
10. Id. at 911; see also id. at 907-908.
11. Id. at 903 n.4.
12. Id. at 905-906.
13. Cal Civ. Code § 51(b); Doe v. California Lutheran High Sch. Assn., 170 Cal. App. 4th 828, 836 (2009) ("An organization is not excluded from the scope of Civil Code section 51 simply because it is nonprofit.").