On January 15, 2019, the Ninth Circuit Court of Appeals issued a decision with important ramifications for website and mobile application (“mobile app”) accessibility under Title III of the Americans with Disabilities Act (“ADA”). In Robles v. Domino’s Pizza, the plaintiff asserted claims for violations of the ADA relating to alleged accessibility barriers encountered on the defendant’s website and mobile app. The district court, while noting that websites and mobile apps can constitute places of public accommodation under the ADA, dismissed the case on both primary jurisdiction and due process grounds. On appeal, the Ninth Circuit agreed with the district court that the ADA may apply to websites and mobile apps with a nexus to a physical location, but reversed the dismissal, holding that neither the primary jurisdiction doctrine nor due process was implicated by the relief the plaintiff sought.
The Robles decision joins a chorus of federal court decisions holding that websites can constitute places of public accommodation under the ADA if there is a nexus between the website and a physical location. Notably, district courts in several other circuits have not required a similar nexus to a brick-and-mortar place of public accommodation for a website to also constitute a place of public accommodation under the ADA, and there is a growing circuit split on this important threshold issue for determining whether a website or mobile app constitutes a place of public accommodation. Compare Nat’l Ass’n of the Deaf v. Netflix, Inc., 869 F.Supp.2d 196, 200–02 (D. Mass. 2012) (concluding that Netflix’s on-demand service website is a place of public accommodation even though its services are accessed exclusively in the home); Andrews v. Blick Art Materials, LLC, 268 F. Supp. 3d 381, 385 (E.D.N.Y. 2017) (“A rigid adherence to a physical nexus requirement leaves potholes of discrimination in what would otherwise be a smooth road to integration.”); Gniewkowski v. Lettuce Entertain You Enterprises, Inc, 251 F. Supp. 3d 908, 917 (W.D. Pa. 2017) (holding that website constituted place of public accommodation under the ADA without requiring nexus to physical location) with Robles v. Domino’s Pizza, LLC, No. 17-55504, 2019 WL 190134, at *4 (9th Cir. Jan. 15, 2019) (“This nexus between Domino’s website and app and physical restaurants…is critical to our analysis.”) and Gil v. Winn Dixie Stores, Inc., 242 F. Supp. 3d 1315, 1321 (S.D. Fla. 2017), appeal docketed, No. 17-13467 (11th Cir. Aug. 1, 2017) (refusing to dismiss case because “Plaintiff has sufficiently alleged a nexus between Winn–Dixie’s website and its physical stores”).
One additional noteworthy aspect of the Robles decision is the Ninth Circuit’s holding that mobile apps may also be subject to the accessibility requirements of the ADA if there is a nexus between the app and a physical location. This holding from a prominent appellate court is likely to result in an increase in the number of lawsuits and private demand letters alleging accessibility barriers with respect to mobile apps. Thus, businesses should determine whether their websites and mobile apps adhere to the Web Content Accessibility Guidelines (“WCAG”) 2.1 Level AA success criteria, which is a private set of guidelines that set forth methods to improve the accessibility of a website or mobile app, and we would be happy to assist with that process. Our experienced Title III ADA team has handled more than 75 website and mobile app accessibility matters over the past several years and it would be their pleasure to provide you with additional guidance in this developing and active area of Title III accessibility law.
