On January 15, 2019, the US Court of Appeals for the Ninth Circuit (Ninth Circuit) ruled that that Domino's Pizza's (Domino's) website and mobile app are subject to the Americans with Disabilities Act (ADA) and Domino's is therefore required to make them fully accessible to the blind and visually impaired. The court also held that the primary jurisdiction did not apply. The Ninth Circuit reversed and remanded to the US District Court for the Central District of California (Central District).

Guillermo Robles, a blind man, unsuccessfully attempted to order a custom pizza from Domino's website. Robles stated that Domino's website and mobile app were not designed to read Robles' screen-reading software that he used to access the internet. In September 2016, Robles sued Domino's for failure to design its website and mobile app in accordance with the ADA.

Domino's moved for summary judgment because it claimed the ADA did not apply to Domino's website and mobile app, and applying the ADA to its website and mobile app violated Domino's due process rights under the Fourteenth Amendment. Alternatively, Domino's invoked the primary jurisdiction doctrine, which allows courts to stay or dismiss a party's claims without prejudice pending the resolution of an issue by an administrative agency with special expertise.

The Central District held that Title III of the ADA applied to Domino's website and mobile app. According to the Ninth Circuit, the ADA applies to websites of places of public accommodation if there is a sufficient nexus between the website and physical brick and mortar location, and the Central District determined that Domino's website and mobile app connected its customers to the goods and services of its physical restaurants. Under 42 U.S.C. § 12182(b)(2)(A)(iii), Domino's has to provide auxiliary aids and services to ensure disabled individuals are not excluded from accessing services of a place of public accommodation, such as Domino's website and mobile app.

However, the Central District also held that Domino's due process rights under the Fourteenth Amendment were violated because Domino's did not receive fair notice of its obligation to comply with Web Content Accessibility Guidelines 2.0 (WCAG 2.0), and the Department of Justice did not offer guidance on how to comply with the ADA. For more information about WCAG 2.0, see Practice Note, Title III of the Americans with Disabilities Act (ADA): Website Compliance: WCAG 2.0 Compliance.

Because the DOJ had not yet established regulatory standards for online accessibility, the Central District invoked the primary jurisdiction doctrine and dismissed Robles' complaint.

The Ninth Circuit affirmed the Central District's holding that the ADA applied to Domino's website and mobile app as there is a nexus between the online services and Domino's physical stores. However, it disagreed with the Central District's opinion on due process and held that the ADA did not violate Domino's due process rights under the Fourteenth Amendment. First, the Ninth Circuit stated that the ADA was clear and not impermissibly vague as to its application to websites and mobile apps. Domino's had fair notice that its website and mobile app had to comply with the ADA since 1996 when the DOJ established that websites must comply with the ADA. Second, the Ninth Circuit stated there were no fair notice concerns regarding WCAG 2.0 guidelines. The WCAG 2.0 guidelines are private and unenforceable, and Robles did not want to impose liability on Domino's for failing to comply with WCAG 2.0. Rather, Robles' complaint was based on Domino's generally violating the ADA.

In addition, the Ninth Circuit held that the primary jurisdiction doctrine did not apply. The primary jurisdiction doctrine is not invoked when an agency is aware of an issue but expresses no interest in the subject matter, or referral to an agency would significantly postpone a ruling. Here, the DOJ was aware of the ADA applying to online services because it issued an Advance Notice of Proposed Rulemaking in 2010 (ANRPM) (75 Fed. Reg. 43460-01) and withdrew the ANPRM in 2017. Because the DOJ has expressed no interest in rulemaking on this issue and has established no process for hearings on this issue itself, referring this case to the DOJ would significantly postpone a ruling. Consequently, the Ninth Circuit reversed the Central District's decision to invoke the primary jurisdiction doctrine.

The Ninth Circuit reversed and remanded to the Central District. The US Supreme Court denied Domino’s petition for writ of certiorari.

Businesses, especially those with products or services in physical stores, should ensure that their website and mobile apps comply with the ADA even though the DOJ has not set standards. Businesses can look to the WCAG 2.0 for guidance. In addition, businesses should monitor for any new regulations or standards the DOJ may set in the future. For more information about ADA online services compliance, see Practice Note, Title III of the Americans with Disabilities Act (ADA): Website Compliance and Legal Updates, Is Your Website ADA Compliant? and Dunkin' Donuts Website Violates the ADA: Eleventh Circuit.