Supreme Court Declines to Weigh In on Website Accessibility

Retail and Consumer Products Law Roundup

In a closely watched case that many hoped would bring some clarity—and sanity—to the subject of website accessibility under the Americans with Disabilities Act, the Supreme Court has instead chosen to punt. Domino’s Pizza had asked the Supreme Court to review a Ninth Circuit ruling that Domino’s was required to make its website compatible with screen-reading software that visually impaired people use to navigate the web and—in this case—to order a pizza. The ADA has no regulations that require website accessibility or specify any online accessibility standards, and Domino’s argued that the Ninth Circuit’s response—that Domino’s must figure out for itself how to satisfy the ADA’s “equal access” and “effective communications” requirements—was so vague as to be unconstitutional. The Supreme Court, however, has denied review without comment.

What does this mean? For now, business as usual: Opportunistic plaintiff’s lawyers will continue to troll the internet with testing tools and serve lawsuits and demand letters on businesses whose websites and apps do not interface seamlessly with screen-reading software. While not all appellate circuits agree on this issue, those distinctions are increasingly irrelevant, as plaintiff’s lawyers usually find a putative client in a plaintiff-friendly jurisdiction.

What should I do? With no regulations on the horizon for nongovernmental websites and apps, the best line of defense is to make your website and app accessible under non-binding standards such as the Website Content Accessibility Guidelines promulgated by the World Wide Web Consortium, or regulations under the Rehabilitation Act that govern accessibility for federal government websites. The Ninth Circuit ruling declined to accord those guidelines legally binding status, but bringing your website or app into compliance with those guidelines—and keeping them in compliance—will keep your online platforms off the plaintiff’s bar radar.

How to get there? It depends on the nature and complexity of your website/app. Simple testing tools can detect problems like the lack of alternative-text tags that describe images—the most frequent complaint by visually impaired users. But a website or app of any complexity typically requires a larger commitment, including, if necessary, an audit by an accessibility professional and the development of web-design protocols to follow whenever a site is created or updated.

What if I get sued or receive a demand letter? Contact counsel with experience in handling online accessibility litigation. You need to take the right steps up front, and experienced counsel can help to realistically assess your options.