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WBK Industry News - Litigation Developments

9th Circuit Clarifies Website Accessibility Under ADA

On January 15, 2019, the Ninth Circuit Court of Appeals held that the ADA requires a covered website to be accessible despite the lack of official standards for website accessibility, and that a plaintiff could cite to the unofficial WCAG standards for website accessibility as potential equitable relief to be ordered, even if violation of those standards would not necessarily violate the ADA.  The court reversed the district court’s dismissal of the action and remanded for further discovery.

The plaintiff – who is visually impaired – claimed the pizza company’s website precluded him from ordering a customized pizza and prevented him from accessing online coupons. The plaintiff claimed that the company violated the ADA and California’s Unruh Civil Rights Act, and sought a permanent injunction requiring the defendant to comply with standards developed by the Web Content Accessibility Guidelines (WCAG) version 2.0.  The case was dismissed by the district court, which held that while the ADA covered the company’s website, imposing liability on the company would violate its 14th Amendment right to due process because the DOJ had not yet promulgated regulatory standards for online accessibility.  In doing so, the court invoked the doctrine of primary jurisdiction, which allows courts to stay proceedings or dismiss a complaint without prejudice pending the resolution of an issue within the special competence of an administrative agency.

The Ninth Circuit affirmed the district court’s ruling that the ADA applies to the company’s website and mobile app.  However, the court reversed the district court’s holding regarding due process, writing that the company has been on notice since 1996 of the DOJ’s position that “its online offerings must effectively communicate with its disabled customers and facilitate ‘full and equal enjoyment’ of [defendant’s] goods and services.”  The court also held that the district court had erred in invoking the doctrine of primary jurisdiction because the DOJ’s withdrawal of its Advanced Notice of Proposed Rulemaking meant that undue delay in a resolution was inevitable, and such a delay was unnecessary because the application of the ADA was within the district court’s competence.

As a result, the Ninth Circuit remanded the case to the district court to determine, after discovery, if the “website and app provide the blind with effective communication and full and equal enjoyment of its products and services as the ADA mandates.”