The Application of the ADA to Websites

Bruce Burk

Tampa, FL (WorkersCompensation.com) – When we typically think about the Americans With Disabilities Act (ADA), we think of laws that require businesses to have things like a guard rail in the bathrooms, braille on the elevator buttons, ramps for wheelchairs, and handicap parking spaces. The common thread through these particular things is that they are brick-and-mortar items. However, the U.S. Supreme Court is being asked to review a new case which applies to a different slice of territory.

Domino’s Pizza has asked the highest court in the land to determine the extent to which the ADA applies to websites. The case is based on a blind customer who wanted to order pizza from Domino’s. The ADA was passed in 1990 prior to the advent of the Internet which came in the early 2000s.

This request is coming amidst a larger debate at the highest level of government over whether the Internet and social media websites should be regulated as if they were public utilities. Social media companies have taken the position that they are not media companies but instead neutral public forums.

It appears that there is already a split in the federal appellate courts on this issue. The Ninth Circuit has determined that the ADA does apply to the pizza chain’s website and mobile application because they also have physical stores. Other courts have decided that the ADA only applies to actual physical locations.
The U.S. Supreme Court has recently had to confront questions of law based on new advents of technology. Most notably, the court recently decided that the police need a search warrant to look at the contents of your cell phone. They applied the Fourth Amendment principles which originally would’ve applied to physical things such as a suitcase with papers in it. They did so even though cell phones were not in existence at the time the Fourth Amendment was drafted.
Opponents of the U.S. Supreme Court taking this case would argue that it was Congress who passed the ADA and if legislators wanted to pass a law which clarified the fact that the ADA applies to websites then they could do so at any time. However, having the judiciary decide this matter would provide judicial overreach of power that belongs to the legislative branch. Supporters would argue that the U.S. Supreme Court should take this case because there has already been a plethora of cases brought in the federal court system on this issue. Given that the Internet has been used more increasingly for commerce, clarification is needed on the issue of whether the disabled should have the same type of access to these online platforms.

You may recall that the U.S. Supreme Court would have appellate jurisdiction in this case which is different from original jurisdiction. The Supreme Court would consider this case on Writ of Certiorari and could choose to decline to hear it. A decision from the highest court in the land on this issue could send shockwaves across the country. If the US Supreme Court were to determine that the ADA does apply to websites or mobile applications, every business would likely need to alter their website and mobile applications to make them accessible to people with disabilities. They would likely do so under the risk of litigation because the ADA creates a cause of action for people to sue if their disabilities are not accommodated. This would likely create a large amount of costs for websites to comply with the ADA and make creating a new website more involved.

Even if the U.S. Supreme Court were to decide this case, Congress could then pass a subsequent law which added to or changed the ADA with respect to websites and mobile applications. This would likely be prudent given the large differences between a brick-and-mortar store and an online e-commerce platform.
Part of Domino’s argument is that it’s not necessary for their website or mobile application to be compliant with the ADA if they offer an alternative method for this customer to order pizza such as the telephone. They also argue that it is unclear what a website which complies with the ADA actually looks like because the law was really intended for physical locations.

Given that more and more of our lives take place on websites and cell phones, it is clear that people with disabilities should have equal access to these platforms. However, this debate is mostly about who should decide the issue.

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