The Hobby Lobby website provides a variety of services which are closely related to Hobby Lobby’s brick and mortar stores, including:  purchasing products online; searching for store locations; viewing special price offers; and purchasing gift cards.  Plaintiff alleged that Hobby lobby violated Title III of the ADA, as well as California’s Unruh Act, by not providing full and equal access to its website for individuals with disabilities (as the website was inaccessible to individuals who are blind and make use of a screen-reading program).  In the complaint, Plaintiff sought injunctive relief requiring Hobby Lobby to ensure that individuals with disabilities have as full and equal enjoyment of the website as individuals without disabilities.  However, importantly, Plaintiff did not seek the imposition of a specific technical rule or standard for Hobby Lobby to provide full and equal enjoyment.

Hobby Lobby made a motion to dismiss Plaintiff’s complaint on two grounds – due process and the primary jurisdiction doctrine.  In short, Hobby Lobby argued that because the U.S. Department of Justice had not promulgated final website accessibility regulations under Title III setting forth specific accessibility standards, it would violate due process to provide Plaintiff with injunctive relief imposing website accessibility obligations as Hobby Lobby lacked sufficient notice of its obligation.  Additionally, Hobby Lobby argued the action should be dismissed under the primary jurisdiction doctrine which, if applied, would hold that the court should not rule on website accessibility issues until DOJ – the expert regulator in this area – first speaks on the issue by promulgating and adopting regulations.  While these arguments have generally failed in the context of website accessibility, their potential viability was recently revisited following the Dominos decision which dismissed a website accessibility action based on these very grounds (noting that businesses might be able to provide access to a website’s services via alternative means than making the website itself accessible – e.g., a 24/7 toll-free, sufficiently staffed, hotline).

Here, in denying the motion to dismiss, the court rejected each of Hobby Lobby’s arguments.  First, the court took great exception with the contention that Hobby Lobby did not have sufficient notice of the need to make its website accessible.  The court stressed that DOJ had articulated its position that Title III requires website accessibility for over 20 years – including in speeches, congressional hearings, amicus briefs and statements of interest, rulemaking efforts, and enforcement actions and related settlement agreements.  Moreover, at a broader level, the court noted that from its inception, Title III has always required “full and equal enjoyment” and the provision of “auxiliary aids and services” for “effective communication” and further explained that these overarching civil rights concepts could (and should) easily apply to websites and screen-readers.  Second, following up on this reasoning and underscoring other comparable times when courts have interpreted similar issues under Title III’s civil rights provisions, the court disagreed that it would be appropriate to apply the primary jurisdiction doctrine.  The court saw no reason the issue of website accessibility could not be adjudicated in the same way countless other Title III matters had been handled in the past.  Moreover, the court expressed concern that – given that seven years has already passed since DOJ first expressed an intent to promulgate website accessibility regulations under Title III with little progress – invoking the doctrine could needlessly delay potentially meritorious claims.

The Court also rejected Hobby Lobby’s efforts to rely upon the Dominos decision – which was reached in the very same court – to support its arguments.  In Dominos – contrary to the law that had come before it in website accessibility matters decided in other jurisdictions – citing due process concerns, the court did invoke the primary jurisdiction doctrine to dismiss a website accessibility claim.  However, the court in Hobby Lobby, readily distinguished the Dominos decision in concluding it did not dictate the same ruling in this case.  Specifically, in Dominos the plaintiff sought injunctive relief that required Dominos comply with the WCAG 2.0, a specific standard that has not been officially adopted by DOJ in Title III regulations (though it has been officially adopted in other government regulations and is readily used by DOJ in its settlement agreements).  In Hobby Lobby plaintiff merely sought “full and equal” enjoyment of the website’s services without specifying how that would have to be accomplished – a pivotal distinction.

The Hobby Lobby decision underscores the likelihood that the Dominos decision remains, for now, an outlier.  Taken in tandem with last week’s post-trial verdict in Gil v. Winn-Dixie Stores, Inc., this most recent decision should be viewed as another reason why businesses should seriously consider prophylactic efforts to make their websites (at least when linked to places of public accommodation) accessible.  (For now, the most commonly accepted path to accessibility remains compliance with WCAG 2.0 at Levels A and AA).

Judge Scola based his decision on the fact that Winn-Dixie’s website, “is heavily integrated with Winn-Dixie’s physical store locations” that are clearly places of public accommodation covered by Title III and, “operates as a gateway to the physical store locations” (e.g., by providing coupons and a store locator and allowing customers to refill prescriptions).  This line of reasoning follows the “nexus theory” body of law that has been developing over the past several years.  Based upon this conclusion, Winn-Dixie was ordered to: (i) bring its website into conformance with the WCAG 2.0 Guidelines; (ii) develop and adopt a website accessibility policy (publishing aspects of it upon the website); (iii) provide website accessibility training; (iv) conduct regular ongoing compliance audits; and (v) pay Plaintiff’s reasonable attorney’s fees and costs.  The parties were left to negotiate the exact timeframe for each requirement.

While this post-trial verdict does not have precedential value in other matters, it does raise a variety of points that businesses should consider as they continue to confront the still-increasing number of website accessibility demand letters and lawsuits:

• The Court applied the nexus theory to the Winn-Dixie website even though customers could not make purchases directly through the website.  The Court deemed the ability to obtain coupons and link them to customer discount cards (for use in stores), refill prescriptions (for in-store pick up), and the presence of the store locator sufficient services for a nexus to exist between the brick and mortar locations and the website;
• By applying the nexus theory, the Court was able to avoid having to rule on whether a website is a public accommodation in and of itself (a point of law courts remain split on);
• The Court adopted the WCAG 2.0 Guidelines as the standard of website accessibility, thus following DOJ, the recently refreshed standards for Section 508 of the Rehabilitation Act, the Air Carrier Access Act, and countless private settlements between businesses and advocacy groups or private plaintiffs reached over the past 5 years;
• The Court gave heavy weight to the testimony of an “accessibility consultant” who had conducted an audit of the Winn-Dixie site and testified very favorably for the Plaintiff that he did not believe that remediation process would be terribly difficult;
• Relying upon the accessibility consultant’s representations, the Court went far beyond the scope of most existing website accessibility agreements by holding Winn-Dixie must require that any third-parties – including tech-giants such as Google – who are responsible for aspects of the website to also conform to the WCAG 2.0 while operating as part of the Winn-Dixie website;
• The Court was unmoved by Winn-Dixie’s estimates that the remediation work to bring the website into conformance with WCAG 2.0 could cost upwards of two hundred and fifty thousand dollars ($250,000), and did not believe that such an amount would constitute an undue burden, noting that in the preceding 2 years the company had spent a total of approximately nine million dollars ($9,000,000) to launch a new website and then modify that new website to roll out a new customer rewards system; and, finally, in the one somewhat helpful piece for businesses;
• The Court noted that in making a website accessible, a business need not ensure that it is accessible on all browsers and when read by all screen reader programs, provided that it is accessible on “main browsers” (e.g., Google Chrome, Internet Explorer, and Apple Safari) when read by “main screen reader programs” (e.g., JAWS and NVDA).

Given the Trump Administration’s edict against the promulgation of new regulations (without first eliminating multiple existing similar regulations) it is increasingly unlikely that DOJ will issue private sector website accessibility regulations in the near future.  Therefore, businesses can expect advocacy groups and private (often serial) plaintiffs to continue to threaten and/or bring website accessibility actions under both the ADA and corresponding state laws.  With that in mind, this verdict serves as a strong reminder of the risks of litigating a website accessibility matter, at least in situations where there is a reasonably clear nexus between a brick and mortar place of public accommodation and the website.

By August 8, 2016, the SNPRM seeks comments on a variety of issues, including, among others:

• The appropriate technical standards for providing an accessible website (e.g., WCAG 2.0?);
• The time period covered entities should be given for compliance once the regulations are effective (e.g., two years?)  and whether additional time should be granted for any specific requirements (e.g., narrative description?);
• Whether exemptions should be granted for a variety of reasons (e.g., smaller entities; archived materials; existing pdf/Word documents; third-party content/links);
• Should alternative formats ever be an acceptable alternative to an accessible website? and
• Should mobile applications be covered by the regulations?

While this development does not directly impact businesses covered by Title III, it does suggest a few relevant considerations.  The questions posed in the SNPRM indicate that DOJ is considering many of the issues that Title III businesses have been forced to grapple with on their own in the face of the recent wave of website accessibility demand letters and lawsuits commenced on behalf of private plaintiffs and advocacy groups.  It would be a positive development for any eventual government regulations to clearly speak to these issues.  Conversely, it may be even longer before we see final regulations for Title III entities.  DOJ has long indicated its intent to first promulgate Title II regulations and then draw upon them in developing subsequent Title III regulations.  While the final Title II regulations were expected in 2016, the Title III regulations were already not expected until any earlier than 2018.  Therefore, this unexpected development could result in even further delays in the issuance of final Title III regulations (something which could also be impacted by any developments relating to this being an election year) resulting in businesses continuing to have to draw teachings from a variety of indirect/analogous resources when assessing how to best address accessible technology issues.

One Industry Takes Action

In the face of mounting frustration stemming from DOJ’s ongoing delays in promulgating website accessibility regulations while plaintiff’s counsel are allowed to continue to aggressively pursue claims some in the real estate industry recently decided to take action.  Citing “the growing confusion around web site accessibility,” on April 29, 2016, the National Association of Realtors wrote a letter to DOJ’s Civil Rights Division imploring DOJ to take actions to regulate the issue of website accessibility for Title III entities as soon as possible.  The letter highlighted the unfortunate dynamic that currently exists as DOJ and plaintiffs’ counsel seek to enforce broad overarching civil rights provisions in the absence of any uniform federal regulations.  (This is similar to the December 2015 efforts of Senator Edward J. Markey (D-Mass.) and a group of eight other Senators who wrote to the Obama administration calling for the prompt release of rules that would clarify and support access to information and communications technology ADA.)

Another Possible Approach to Mobile Accessibility?

While most current settlement agreements regarding website accessibility focus on desktop websites, many businesses are anticipating that the next target for plaintiffs and advocacy groups will be their mobile websites and applications.  Such concern is well founded as recent DOJ settlement agreements addressing accessible technology have included modifications to both desktop websites and mobile applications.

To date, those settlements have referenced the same compliance standard for both desktop and mobile websites and applications; WCAG 2.0 at Levels A and AA.  This is notwithstanding the fact that as currently written WCAG 2.0 does not directly incorporate mobile applications.  While the W3C has stated that a large number of existing WCAG 2.0 techniques can be applied to mobile content, a separate list of mobile-related guidelines is not currently available (though the W3C’s Mobile Accessibility Task Force is working to develop WCAG 2.0 Techniques that directly address emerging mobile accessibility challenges such as small screens, touch and gesture interface, and changing screen orientation for use with the WCAG).   In the interim, the W3C has published a working draft document titled “Mobile Accessibility:  How WCAG 2.0 and Other W3C/WAI Guidelines Apply to Mobile” that is intended to help mobile app developers apply the current WCAG 2.0 requirements to mobile applications.

However, a recent settlement between Netflix Inc. and the American Council of the Blind and Bay State Council of the Blind took a somewhat different approach.  While relying upon WCAG 2.0 Levels A and AA for the desktop website obligations, for mobile applicable devices, the agreement instead referenced the British Broadcasting Corporation’s Mobile Accessibility Standards and Guidelines version 1.0 (the “BBC Mobile Requirements”).

The BBC Mobile Requirements are a set of best practices for mobile web content and applications.  Instead of attempting to apply the desktop website requirements of the WCAG 2.0 to mobile applications, the BBC Mobile Requirements provide mobile application developers with a list of accessibility requirements for 11 topics that are specifically geared to enhance the accessibility of mobile applications.  The BBC Mobile Requirements were developed to:  (i) more accurately reflect the technology used by mobile applications; (ii) provide testing criteria that can be specifically applied to mobile devices; and (iii) provide developers of the two most pervasive mobile application platforms – iOS (Apple) and Android – with specific guidance for providing accessibility where one technique may not be applicable to both platforms.  They are categorized as:  (i) “Standards,” which are identified by the words, “Must” or “Must Not”; and (ii) “Guidelines,” which are identified by the words, “Should” or “Should Not.”  Per the BBC Mobile Requirements website, “In general, standards are best practices that can easily be tested with specific criteria that is not subjective and is technologically possible to achieve with current assistive technology on mobile devices.  Guidelines are less testable but considered core to accessible mobile website and apps.”

For the most part, the BBC Mobile Requirements reflect existing WCAG 2.0 requirements.  For example, the BBC Mobile Requirements state that mobile application content requiring user input (e.g., forms to sign up for email alerts) should have explicit labels describing the type of user input that is required.  This is similar to WCAG 2.0 Level A Guideline 3.3.2 – Labels or Instructions, requiring that, “Labels or instructions are provided when content requires user input.”  Additionally, in some instances, the BBC Mobile Requirements directly reference the WCAG 2.0.  For example, the BBC Mobile Requirements’ Standard for color contrast states that developers should “… use the WCAG 2.0 Level AA contrast ratio of at least 4.5:1.”  However, there are some BBC Mobile Requirements, such as “Touch target size” (requiring mobile application content to be structured so that it is large enough for a user to tap the target area comfortable with one finger), that do not have an equivalent WCAG 2.0 requirement at this time.

Given the challenges some businesses have cited in directly applying all WCAG 2.0 guidelines to certain aspects of mobile applications, the BBC Mobile Requirements offer another possible consideration.  However, the lack of clarity with respect to this issue only underscores why DOJ’s most recent additional regulatory delay is the sources of considerable frustration for most businesses.

As always, keep following EBG’s blogs for updates regarding ongoing developments in accessible technology.

Frustrating news has emerged from Washington D.C. as the recently-published federal government’s Fall Semiannual Regulatory Agenda revealed that the long-anticipated U.S. Department of Justice’s (“DOJ”) Notice of Proposed Rulemaking (“NPRM”) for regulations governing website accessibility for places of public accommodation under Title III of the Americans with Disabilities Act (“Title III”) would not be issued in the Spring of 2016 as most recently anticipated and would instead be delayed until fiscal year 2018.  DOJ now intends to issue a NPRM governing website accessibility for state and local governments under Title II of the ADA in early 2016 and then hopes that that process will create the necessary infrastructure to develop and promulgate similar regulations for entities governed by Title III. 

Such news is particularly troubling given the recent surge in website accessibility actions brought against places of public accommodation and business establishments operating exclusively in cyberspace by private plaintiffs, advocacy groups, and regulators at the federal, state, and local levels.  Indeed, notwithstanding DOJ’s latest delay, there is no indication that the federal government intends to cease its quest to have places of public accommodation provide accessible websites.  Relying upon Title III’s overarching civil rights obligations – most importantly that places of public accommodation provide “full and equal enjoyment” of its goods, services, etc. – DOJ continues to seek website accessibility provisions as part of its settlement agreements with a wide variety of places of public accommodation.  DOJ has even gone so far as to file Statements of Interest in private litigations ongoing between both Harvard University and the Massachusetts Institute of Technology and the National Association of the Deaf in the U.S. District Court for Massachusetts opposing their efforts to have the lawsuits dismissed or stayed pending DOJ’s completion of the rulemaking process.  (3:15-CV-30023 (D.Mass) and 3:15-CV-30224 (D.Mass))

The limited number of judicial decisions addressing the applicability of Title III to the websites of places of public accommodation and online businesses do not provide a clear road map for businesses due to the existence of a split body of case law.  The current law falls along three primary lines:  (i) Title III’s application is limited to actual physical places and cannot apply to websites absent an amendment to Title III or the issuance of new regulations; (ii) Title III applies to websites when there is a nexus between a physical place of public accommodation and the goods and services offered on its website; and (iii) Title III applies to even online-only businesses because Title III must be read broadly to promote the ADA’s goal of allowing individuals with disabilities to fully and equally enjoy and participate in society and, therefore, it must evolve to apply to new technologies.  The limited body of case law to date has developed primarily in the preliminary motion to dismiss phase and, therefore, the viability of various potential affirmative defenses or what it means for a website to be accessible has not be sufficiently analyzed by the courts. 

Further complicating the landscape, since DOJ announced its previous delay of the regulations (then into April 2016) this past spring, businesses across most industries – including retail, hospitality, financial services, and sports and entertainment – have been deluged with demand letters from industrious plaintiffs’ firms seeking to take advantage of the regulatory uncertainty and limited case law.  Understanding that the costs of litigating a developing area of the law may prove significant and the return uncertain, many businesses are opting to reach amicable resolutions to these matters rather than explore more aggressive litigation positions.  To the extent others hoped that DOJ guidance would soon stem the tide of these demand letters, this most recent development is disheartening news.  Businesses hoping to avoid such letters are best served by taking prophylactic actions to address the accessibility of their websites.

For more on these issues see: 

http://www.hospitalitylaboremploymentlawblog.com/2015/06/articles/ada/doj-further-delays-release-of-highly-anticipated-proposed-website-accessibility-regulations-for-public-accommodations/

http://www.technologyemploymentlaw.com/ada-and-disability-law/access-board-seeks-to-revise-accessibility-standards-for-information-and-communications-technology-of-federal-agencies-and-certain-technology-manufacturers-moving-to-functionality-based-approach/

http://www.ebglaw.com/joshua-a-stein/news/key-issues-facing-places-of-public-accommodation-at-the-25th-anniversary-of-the-ada/