Thursday, April 13, 2017

FYI: CD Cal Cites Lack of Clear Regulatory Guidance in Dismissing ADA Claims Relating to Website Accommodations for Visually-Impaired

The U.S. District Court for the Central District of California recently dismissed a claim brought under the federal Americans with Disabilities Act ("ADA") brought by a visually-impaired plaintiff who alleged that the defendant pizza company's website did not permit users to complete their purchases using a screen-reading software program.  The plaintiff also alleged that the company's mobile app did not allow him to access the menu on his iPhone using a particular software. 

In dismissing the action without prejudice, the Court concluded that there were no regulations clarifying what web accessibility accommodations are required under the ADA.  Thus, the Court held, it was uncertain whether the company's web accessibility accommodations complied with the ADA.  In so ruling, the Court expressly called on Congress, the Attorney General, and the Department of Justice to issue regulations setting minimum web accessibility standards.

A copy of the opinion is attached.

The plaintiff brought the lawsuit against a retail pizza company, alleging the company's website and mobile app were not accessible to and independently usable by plaintiff and other blind or visually-impaired people using "screen readers." 

In particular, the plaintiff alleged the company's website did not allow users to complete their purchase using the screen-reading software program Job Access With Speech ("JAWS").  The plaintiff also alleged the company's mobile app did not permit him to access the menus and applications on his iPhone using the "VoiceOver" software program.  The plaintiff alleged that the website and mobile app failed to comply with version 2.0 of W3C's Web Content Accessibility Guidelines ("WCAG 2.0") under the ADA. 

The plaintiff brought claims under the ADA and California's Unruh Civil Rights Act ("UCRA"). 

The Court noted that the company's website and mobile app included accessibility banners that directed users who access the website using screen readers to call a specific toll free number if they need any assistance.  The Court also noted that the toll free phone number is staffed by a live representative who can assist blind or visually-impaired individuals.  The banners also indicated customers can call their local store directly to make purchases or ask questions.

The company moved for summary judgment on all of plaintiff's claims, asserting that dismissal was warranted for several reasons. 

First, according to the company, websites and mobile apps do not constitute "places of public accommodation" under the ADA.  Next, the company asserted the lawsuit violates fundamental principles of due process because the ADA, its implementing regulations, and the Department of Justice's ("DOJ") website all failed to indicate whether complying with WCAG 2.0 constitutes compliance with the ADA. 

The company's third argument was that the plaintiff could not establish violations of any applicable accessibility standards.  Fourth, according to the company, the UCRA claims fail because plaintiff could not establish the company intentionally discriminated against him.  The company's fifth argument was that plaintiff's UCRA's claims fail because the company did not have notice of the barriers plaintiff claims exist.  The company's final argument asserted the matter should be stayed because the DOJ had not issued any accessibility regulations addressing the websites and mobile apps of private businesses. 

The Court first address the company's argument that websites and mobile apps do not constitute "places of public accommodation" under the ADA.  In analyzing the background of the ADA and legal precedent interpreting it, the Court rejected the argument that websites and mobile apps do not need to comply with the ADA. 

Although the company raised several other arguments, the remainder of the Court's opinion addressed the company's argument that the lawsuit violates fundamental principles of due process because the ADA, its implementing regulations, and the DOJ's website all failed to indicate whether complying with WCAG 2.0 constitutes compliance with the ADA. 

The Court quickly established that the ADA regulations specifically reference "screen reader software" and "other effective methods of making visually delivered materials available to individuals who are blind or have low vision" as forms of accommodations under the ADA. 

According to the company, however, other than the acknowledgement that accommodations for web access exist, there was no concrete guidance addressing the accessibility standards a website must meet, or any standards established that companies operating websites must meet.  More specifically, the company argued that there were no regulations, guidelines or rules establishing that it had to comply with the WCAG 2.0. 

Responding to the company's argument, the Court observed that "the DOJ has consistently stated its view that the ADA's accessibility requirements apply to websites belonging to private companies."  The Court determined that the true inquiry was whether the DOJ had issued any guidance regarding the specific type of access at issue in this case.

The Court noted that the DOJ had issued a Notice of Proposed Rulemaking ("NOPR") in 2010 intended to address requirements for public accommodations via the internet and websites accessible to individuals with disabilities.  Within the NOPR, the DOJ acknowledged the creation of WCAG, but stated that "a clear requirement that provides the disability community consistent access to Web sites and covered entities clear guidance on what is required under the ADA does not exist."  Since the 2010 NOPR, the DOJ has not issued any final rule regarding web access.

The company relied on the fact that no final rule regarding web access had been issued to assert that plaintiff's allegations that the company failed to comply with certain accessibility standards would violate the company's due process rights.  In support of its argument, the company relied on the Ninth Circuit's ruling in United States v. AMC Entertainment, where that Court concluded that a specific provision within an ADA regulation was too vague to put the defendant on notice of whether it was required to retroactively incorporate a comparable viewing angle requirement in movie theaters. After criticizing the government for having "ample opportunity" to clarify the provision at issue but failing to do so, the Ninth Circuit concluded: "We decline to require AMC to have determined the precise meaning of the regulation when the government did not do so." 

The Court here found the ruling from AMC was analogous to the facts of this case.  "Here, too, Plaintiff seeks to impose on all regulated persons and entities a requirement that they 'compl[y] with the WCAG 2.0 Guidelines' without specifying a particular level of success and without the DOJ offering meaningful guidance on this topic.  This request flies in the face of due process." 

The Court rejected the plaintiff's argument that because the DOJ has issued several "Statements of Interest" and entered into several consent decrees and settlements requiring compliance with WCAG 2.0, so too must the company. 

In addition, the Court observed that the ADA requires "reasonable accommodations," and does not require entities to provide the best available accommodation.  The Court then determined that the plaintiff failed to articulate why the company providing a telephone hotline for the visually-impaired, or its use of a technical standard other than WCAG 2.0, would not qualify as a reasonable accommodation. 

The Court granted the company's motion and dismissed each of plaintiff's claims without prejudice pursuant to the primary jurisdiction doctrine, which allows the Court to stay proceedings or dismiss a complaint without prejudice pending the resolution of an issue within the special competence of an administrative agency. 

The Court then expressed the significance of establishing regulations and guidelines addressing the constantly-present issue of web accessibility.  "The Court concludes by calling on Congress, the Attorney General and the Department of Justice to take action to set minimum web accessibility standards for the benefit of the disabled community, those subject to Title III [of the ADA], and the judiciary." 

Eric Tsai
Maurice Wutscher LLP
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