Since late last year, many banks in California, New York and Pennsylvania have received demand letters from two law firms that claim the websites of those banks violate Title III of the Americans with Disabilities Act (ADA). The demand letters assert that individuals with disabilities (typically the visually impaired) attempted to use the website of the banks, and faced unreasonable barriers to access, which made it impossible for the claimants to access the websites. The websites, according to the law firms, fail to comply with website standards developed by the World Wide Web Consortium called Web Content Accessibility Guidelines (WCAG 2.0). The law firms seek attorneys’ fees, costs and injunctive relief in connection with the demand letters.
Litigation has been commenced in several states, including California, over this issue of website accessibility by visually impaired individuals.
The ADA’s Title III became law in 2000 and protects disabled persons in public accommodation and commercial businesses. While Title III itself does not contemplate websites as a place of public accommodation, the Department of Justice (“DOJ”) along with several courts have reached that conclusion. The DOJ, which is charged with responsibility for promulgation of regulations, has promised to implement regulations by 2018. The DOJ has said in the interim WCAG 2.0 provides a minimum standard. A number of courts have agreed and allowed pending cases to continue despite motions to dismiss or stay the action until the DOJ issues its regulations. These decisions have meant that banks have been forced to defend these actions without really knowing what the DOJ regulations will provide. Several have settled with the law firms rather than litigate. Now there may be some relief for banks in California.
On March 20, 2017, a federal judge in Los Angeles granted Domino’s Pizza’s motion to dismiss a website accessibility lawsuit filed by a visually impaired person. In Robles v. Domino’s Pizza LLC the District Judge ratified the argument that in absence of a clear DOJ regulation of what “accessibility” means for a website, the defendant’s due process rights had been violated. The Court chastised the DOJ for failing to follow through on its July 2010 pronouncement to regulate website accommodation for public accommodation and ruled it was unfair to hold the defendant to an ambiguous legal obligation or the WCAG 2.0. The Court dismissed the action “pending the resolution of an issue with the special competence of an administrative agency.” This federal court parted ways with several other courts which had applied WCAG 2.0 as standards despite the DOJ’s failure to issue regulations.
While this ruling provides ammunition for clients seeking to fight these claims, it also leaves banks with uncertainty as to just how to improve websites to meet future ADA regulations by the DOJ. An unintended consequence of this ruling also strengthens the hands of bank vendors which have routinely denied any obligation to comply with WCAG 2.0.
Since, Robles was dismissed without prejudice, it can be refiled when the DOJ regulations are announced.
In the meantime, hopefully, the DOJ will act and provide the regulatory help which may actually assist the industry in this instance.