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Is your Municipal Website ADA Compliant?

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Sarah J. Gabis
Foster Swift Municipal Law News
November 12, 2019

The United States Supreme Court has Denied Review Effectively Allowing a Blind Man’s Case to Go Forward Against a Company to Compel Website Compliance with the ADA

On October 7, 2019 the United States Supreme Court denied a request by Domino’s Pizza to review the Ninth Circuit Court of Appeals’ decision, allowing a blind man’s case to go forward against Domino’s.1 Guillermo Robles sued Domino’s Pizza seeking damages and injunctive relief claiming that Domino’s failure to design its website and app to be compatible with screen reading software violated the Americans with Disabilities Act (“ADA”).

Robles v Domino’s Pizza, LLC, 913 F3d 898, 902 (2019). The lower district court held that while the ADA’s “auxiliary aids and services” requirements apply to Domino’s website and app, it dismissed Robles’ complaint concluding that it would be a denial of due process to impose the requirement on Dominos’ to make their website and app ADA compliant. Id. at 903-904.

The lower court based its decision on the fact that meaningful guidance on the topic from the United States Department of Justice had yet to be issued. Id. The Ninth Circuit Court of Appeals rejected that rationale and reversed the district court. Id. at 909. The Supreme Court of the United States then denied Domino’s request to review the Ninth Circuit’s opinion, which effectively allows Robles’ case to proceed against Domino’s.

What does this mean for your municipality’s website?

First and foremost, an important distinction exists between Domino’s Pizza and your municipality. When it comes to the ADA, private companies like Domino’s, are subject to a different set of regulations than those imposed upon municipalities. Public entities like your municipality are subject to Title II of the ADA,2 "Public Services", while private companies are regulated by Title III of the ADA,3 “Public Accommodations and Services Operated by Private Entities.” The law is evolving relatively quickly as it relates to website accessibility of these private entities resulting in a split among the federal circuits.

Some Circuits hold a narrow interpretation that a disabled person is entitled to the “full and equal enjoyment” of goods and services offered by a private company only if they are offered at a physical location. Meanwhile, the Sixth, Ninth, and Eleventh Circuits hold that if there is a “nexus” between the challenged service and the physical place of public accommodation, the website is subject to the accessibility requirements of the ADA.

Over the past few years, a niche of sorts has developed in this area of the law, created by the filing of thousands of lawsuits alleging that private company websites are not accessible to the blind or visually impaired, in violation of Title III of the ADA. Comparatively, however, there remains a significant void4 in the development of the law surrounding this question regarding a public entity’s website under Title II of the ADA. As recently as April of this year, one United States District Court within the 11th Circuit nicely summarized the unsettled state of the law in this area:

“There is a dearth of case law addressing standing in a case like this: a Title II ADA case in which the alleged violation involves a website... While district courts are, at the very least, beginning to flesh out these issues in Title III website cases, there has been little discussion of what it takes to satisfy standing or to state a claim in Title II website cases… and reliance on Title III website case law …is misguided because requiring a nexus between a governmental website and an impediment to accessing a physical, brick-and-mortar location makes no sense under Title II.

Again, Title II has no statutory requirement that a violation be connected to a physical location. So the requirement that a website impede access to a physical location to be actionable cannot be applicable. For this and various other reasons, this Court concludes Title III case law on standing and what is needed to state a claim is largely inapplicable to Title II website cases.” [Price v. City of Ocala, 375 F Supp 3d 1264 (MD Fla, 2019).]

Because the Price District Court had little precedential guidance from higher courts to rely upon in resolving the issue of standing in a Title II website case, it formulated its own educated and well-reasoned analysis holding that the disabled individual lacked standing because he failed to plead sufficient facts to support an immediate threat of future injury. Id. at 1277.

The court permitted the plaintiff an opportunity to amend his complaint, however, to allege such facts to the extent he could.

Interestingly, this is not the only Title II website case pending in Florida, and it appears that there are several “test cases” being currently litigated at the district court level there, most relying on the Price court’s analysis.5 These cases undoubtedly represent the next wave of litigation related to ADA website compliance, Title II public entities being the primary target. While many of these district court cases have been resolved in favor of the municipality, it has not been on grounds that a municipal website need not become accessible to the visually impaired.6

Rather, they have been largely resolved on specific factual issues related to the plaintiff’s level of contact with the municipality as that relates to the threat of immediate injury to satisfy standing requirements. It remains to be seen what the 11th Circuit will do with the district courts’ analyses in these cases when they are undoubtedly appealed, or when a new plaintiff with sufficient contacts within the municipality files his or her claim. Notably, the Sixth Circuit has not yet seen a level of litigation in this area comparable to what is currently happening in Florida. However, at least one federal district court within the Sixth Circuit has found a municipal website non-compliant under Title II, in the context of the issuance of a permanent injunction:

“The Court finds that Plaintiffs have sufficiently established that Secretary Husted's website violates Title II of the ADA because it is not formatted in a way that is accessible to all individuals, especially blind individuals like the Individual Plaintiffs whose screen access software cannot be used on the website. Therefore, Plaintiffs have proven the first element for a permanent injunction, success on the merits of their ADA claim.” [Hindel v Husted, ___ F Supp ___, (SD Oh, Feb 1, 2017)(Case No. 2:15-cv-3061).7]

As noted above, neither party appealed the issuance of a permanent injunction in this case, and thus, the district court’s permanent injunction stands.

What is notable about this district court case within the Sixth Circuit is the subject matter surrounding the Plaintiff’s allegations. In Hindel, the thrust of the Plaintiffs’ complaints involved their lack of access to the Ohio Secretary of State’s voter services website. At the time of Plaintiffs’ request for a permanent injunction, the website offered Ohio voters information about voting procedures and policies, candidates, new voting initiatives, election results and data, campaign finance information, and upcoming elections. In addition, voting forms, including voter registration and absentee ballot request forms, were available on the website.
Voters who wished to change their voter registration could do so via website and also register to vote. It was undisputed at that time that the State of Ohio’s voter services website was not compliant with published guidelines related to accessibility for all users, including blind voters. In this context, the District Court held that the Plaintiffs had established that the website violated Title II of the ADA and issued a permanent injunction. In this upcoming election season, municipalities should make note of this decision.

What Standards Apply to a Public Entity?

As indicated above, the state of the law in this area related to Title II public entities is unsettled, and at least one federal court has reasonably opined that Title III analysis in this area is inapposite to Title II public entities.Movement in the law indicates that it is likely that Title II public entities will soon come under heavier fire as it relates to website accessibility. Though one court has opined that Title III analysis is insufficient related to Title II entities, there are enough similarities in the regulations under Title II and Title III that municipalities should be aware of their potential responsibility in this regard.

For instance, consider the Ninth Circuit’s reliance in Robles on regulations promulgated under Title III to hold that the ADA applies to Domino’s website:

“DOJ regulations require that a public accommodation “furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities.” Robles, 913 F3d at 904.
                                                                                                   and
“DOJ defines ‘auxiliary aids and services’ to include ‘accessible electronic and information technology’ or ‘other methods of making visually delivered materials available to individuals who are blind or have low vision’” Id. at 904-905.

The specific Title III regulation relied upon by the Ninth Circuit states in applicable part:

“(1) A public accommodation shall furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities.” 28 CFR § 36.303(c)(1).

Title II regulations, applicable to public entities like your municipality, are strikingly similar to their Title III counterparts. For instance, see Title II’s regulation applicable to communications with those with disabilities:

(a)(1) A public entity shall take appropriate steps to ensure that communications with applicants, participants, members of the public, and companions with disabilities are as effective as communications with others.

(b)(1) A public entity shall furnish appropriate auxiliary aids and services where necessary to afford individuals with disabilities, including applicants, participants, companions, and members of the public, an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity of a public entity. 28 CFR § 35.160 (a)(1) and (b)(1).

While the regulations promulgated pursuant to Title II and Title III are separate and distinct between public entities and private companies, the similarity between the regulations cannot be ignored. The regulations under both Title II and Title III require “effective communication” with persons with disabilities and their companions and both regulations require “auxiliary aids and services” be provided where necessary. Importantly, the “auxiliary aids and services” definitions in regulations under both Title II and Title III are identical. See 28 CFR § 35.104(2) (Title II) and 28 CFR § 36.303(b)(2).

Notwithstanding these important similarities, the Supreme Court of the United States has confirmed that the focus of a Title II inquiry is access to services, programs, and activities, not access to facilities. See San Francisco v Sheehan 135 S Ct 1765, 1773, 191 L Ed 2d 856 (2015). The Sixth Circuit has fallen in line, holding that an individual with a disability does not have a claim against a municipality when her claim only identifies facility related issues, without specific identification of a program, service, or activity of the public entity to which her access is impacted. Babcock v Michigan, 812 F3d 531, 538-539 (6th Cir., 2016).

That said, broad interpretation of the phrase "services, programs, and activities," encompasses virtually everything that a public entity does. Id. at 540. The current state of the law, even though unsettled, suggests at least that a website operated by a public entity can certainly fall within a “service, program or activity” of a public entity. In fact, the Department of Justice, the agency statutorily charged with the rulemaking authority8 under Title II of the ADA has taken the position that Title II covers internet website access. See 28 CFR 35 app A. Specifically, the Department warns:

Public entities that choose to provide services through web-based applications (e.g., renewing library books or driver's licenses) or that communicate with their constituents or provide information through the Internet must ensure that individuals with disabilities have equal access to such services or information, unless doing so would result in an undue financial and administrative burden or a fundamental alteration in the nature of the programs, services, or activities being offered.

Id. The Department further advised of its intent to engage in rulemaking specific to website accessibility in the “near future” and that it would otherwise enforce the ADA in the area of website accessibility “on a case-by-case basis under existing rules” until website compliance is “addressed in a final regulation.”

Id. Notwithstanding, this guidance was issued in 2010, and the DOJ has been less than reliable since that time in promulgating rules in this area, having issued official advance notices of rule-making, only to later withdraw them as recently as December of 2017.9

What is concerning in this regard, is the Robles Court’s refusal to allow Domino’s Pizza to rely on the Department of Justice’s failure to provide specific regulations in this area as an excuse for their website’s non-compliance. Robles, 913 F3d at 909. Accordingly, a municipality may not rely on the lack of promulgated regulation in this area to excuse it from updating its website for compliance if it would otherwise be considered unreasonable and discriminatory not to do so.

How Can Your Municipality Be Proactive?

The Robles case is an indication of what public entities can likely expect to see on the courts’ dockets in the near future. The unsettled nature of the law, coupled with the arguably purposeful lack of specific rule making from the Department of Justice in the area of website ADA compliance, is a recipe for an uptick in litigation in this area, of the sort currently being experienced in Florida. And while guidance has been promulgated by the Department of Justice on the topic,10 the guidance is dated, and the Robles case teaches that a municipality should not rely on it alone, nor the lack of guidance from the Department of Justice in determining whether its website is compliant.

As a start, municipalities should take this opportunity to review their municipal website and ADA policies to determine if a person with disabilities has an equal opportunity to access the information, services, programs, and activities offered by the municipality, on and off its website, as those who are not disabled.

As election season continues to progress, the Husted case warns that municipalities should take special consideration to ensure any voter information and services offered through its website is equally accessible to disabled voters.

Should your municipality desire further information or assistance in this area, please contact any member of the Municipal Team at Foster Swift Collins & Smith, PC. We would be happy to consult with you regarding this important and emerging topic in the law.


1See United States Supreme Court Order List: 589 U.S., for Monday October 7, 2019, Docket No. 18-1539, Certiorari Denied.
2242 USC § 12131 et seq.
342 USC § 12181 et seq.
4Significant guidance articulated by the Federal Courts of Appeals related to Title II website cases is lacking. See Sierra v City of Hallandale Beach, Florida, 904 F3d 1343 (11th Cir. 2018)( the Twenty-First Century Communications and Video Accessibility Act of 2010, 47 USC § 613, does not create an administrative exhaustion requirement that had to be satisfied as a prerequisite to bringing a claims, and the primary-jurisdiction doctrine does not require abstention); Hindel v Husted, 875 F.3d 344 (6th Cir. 2017)(absentee voting for the blind, but plaintiffs also complained about Ohio's voter website, which the district court resolved in plaintiffs' favor by way of a permanent injunction that was not appealed to the Sixth Circuit Court of Appeals.)
5See Open Access for All, Inc. v Town of Juno Beach, ___ F Supp ___ (SD Fla., 2019); Gil v City of Pensacola, __ F Supp 3d __, (SD Fla., 2019); Price v. Town of Longboat Key, ___ F Supp ___ (SD Fla 2019); Gomez v Marion Cty., Fla., ___ F Supp ___, (SD Fla 2019); Gil v Panama City, Florida, ___ F Supp ___, (ND Fla, Panama City Civil Div. Case 5:19-cv-00039-MCR-MJF) (Complaint filed February 11, 2019 alleging Title II discrimination based on lack of website accessible to the visually impaired).
6See Note 5.
7See Note 4, Hindel v Husted, 875 F.3d 344 (6th Cir. 2017).
842 USC § 12134(a).
9https://www.federalregister.gov/documents/2017/12/26/2017-27510/nondiscrimination-on-the-basis-of-disability-notice-of-withdrawal-of-four-previously-announced
10Please see https://www.ada.gov/pcatoolkit/chap5toolkit.htm ADA Best Practices Tool Kit for State and Local Governments Website Accessibility Under Title II of the ADA (May 7, 2007); https://www.ada.gov/websites2.htm Accessibility of State and Local Government Websites to People with Disabilities (October 9, 2008)