ADA Website Accessibility Lawsuits Won’t Go Away in 2020: Part 2 – Rights to Due Process and Standing Requirements – By Jim Butler

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ADA Website Accessibility Lawsuits Won’t Go Away in 2020: Part 2 – Rights to Due Process and Standing Requirements – By Jim Butler

In Part 1 of this 3-part series, my partner, Marty Orlick, Chair of JMBM's ADA Compliance and Defense Group, explains how we got from providing parking for disabled guests, to providing websites and mobile apps that can be accessed by potential guests who are blind or sight impaired. Now, in part 2, he writes about a few key court decisions that may affect ADA compliance and litigation, and what they mean to the hospitality industry.

This article was first published by Law360® Expert Analysis, © 2019 Portfolio Media Group Inc. and is reprinted with permission. 

The Supreme Court and the Ninth Circuit: Rights to due process

On October 7, 2019, the U.S. Supreme Court declined to hear an appeal by Domino’s Pizza LLC, sending Domino’s back to the trial court to determine if it can be held liable under the ADA for website accessibility. The high Court’s refusal to accept certiorari in this case was a disappointment to the hospitality industry and others. What happened?

In 2017, a federal district judge dismissed the website accessibility suit filed against Domino’s by a prolific ADA plaintiff (Robles v Domino’s Pizza LLC) on grounds that the failure of the DOJ to issue clear guidelines for website accessibility standards violated Domino’s constitutional right to due process. It appears that the DOJ was unaware of the lawsuit or that Domino’s filed a dispositive motion in the case, otherwise it likely would have intervened or filed an amicus (friend of the court) brief in opposition to the motion. Domino’s convinced the court that the DOJ had inconsistently applied the WCAG criteria in settlements, Consent Decrees and litigation. Domino’s convinced the court that such inconsistent application left businesses guessing which criteria to follow when developing their websites – the due process violation.

However, the Ninth Circuit Court of Appeals reversed the lower court’s decision and on January 15, 2019, determined that the ADA applies to Domino’s website, writing in its Opinion that: “Finally, the lack of specific regulations, not yet promulgated by the Department of Justice, did not eliminate Domino’s statutory duty.”

Now that the Supreme Court has declined to review the Ninth Circuit’s decision, the case returns to the District Court to be tried on its merits. Whether that will happen is yet to be seen – it’s possible the case will be settled soon after remand.

The Fourth Circuit and Seventh Circuit hold the line on standing requirements

In 2019, the United States Court of Appeals for the Fourth Circuit dismissed two website accessibility lawsuits, both for lack of Article III standing. Both lawsuits were filed by individuals who are blind and alleged they could not access defendants’ websites with screen reading software. A similar case in the Seventh Circuit Court of Appeals was also dismissed for lack of standing.

In Griffin v. Dept. of Labor Credit Union, the Fourth Circuit’s published opinion asserts:  “An injury in fact is an indispensable aspect of constitutional standing…” and “Thus, in order to prevail, Griffin must allege an injury that is concrete, particularized, and  immediately threatening.”

Griffin, the plaintiff, was not injured because he was not legally permitted to make use of the Department of Labor Credit Union’s services as he did not work, nor has ever worked for the Department of Labor, nor does any family or household member.

The Court concluded: “Griffin puts his case in broad terms, claiming that the rights generally of people with disabilities to sue for Internet-based harms under the ADA are at stake. But that question is not before us. This case concerns the application of standing doctrine in an electronic age and it is important that we move narrowly in exploring this new territory. Accordingly, we address only whether this plaintiff who is barred by law from making use of defendant’s services may sue under the ADA for an allegedly deficient website. The answer to this narrow question here is no.”

Similarly, in Carroll v. Northwest Federal Credit Union, at the time Carroll filed his amended complaint he was not eligible to participate in the Northwest Federal Credit Union, and the Fourth Circuit determined he did not have standing to sue as he was not injured.

The United States Court of Appeals for the Seventh District came to the same conclusion in Carello v. Aurora Policeman Credit Union: Carello, the blind plaintiff using screen reading software, was not eligible for membership in the Aurora Policeman Credit Union, and therefore lacked standing to sue because he failed to allege an injury in fact.

In part 3, we will discuss ADA litigation that is specific to hotels.

Martin H. Orlick is one of the top ADA defense lawyers in the country. He has helped hotels, restaurants, retailers, banks and other commercial property owners defend more than 600 ADA cases. In addition to defending lawsuits and governmental investigations, Marty’s team of ADA specialists focuses on enterprise-wide ADA compliance and litigation prevention, including facilities, website and operational compliance. He is also is a senior member of the law firm’s Global Hospitality Group®, a partner in the real estate department, and a member of the American College of Real Estate Lawyers (ACREL). For more information about ADA compliance and defense, contact Marty Orlick at 415.984.9667 or morlick@jmbm.com.

This is Jim Butler, author of www.HotelLawBlog.com and hotel lawyer, signing off. Please contact us if you would like to discuss any issues or development that affect your hotel interests. We would like to see if our experience might help you create value or avoid unnecessary pitfalls. Who’s your hotel lawyer?