Title III of the Americans with Disabilities Act (ADA) provides that
No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.
42 U.S.C. Section 12182(a). What about a website? Is that a “place of public accommodation”? The answer to that question could make a big difference in determining whether your business faces legal risks and whether you can protect against those risks with insurance. A recent decision out of the Ninth Circuit highlights the split in United States jurisdictions about whether a website is subject to the prohibitions against discrimination found in the ADA.
On January 15, 2019, the Ninth Circuit confirmed that the online ordering feature offered by Domino’s Pizza was subject to the protections afforded under the ADA. Robles v. Domino’s Pizza, LLC, 913 F.3d 898 (9th Cir., Jan. 15, 2019). There, a blind man was unable to order pizza from Domino’s, even with the screen-reading software he was using. The court held that the Domino’s physical restaurants are places of public accommodation, and that since customers use the website and app to locate nearby Domino’s restaurants for at home delivery or in-store pickup, the website was subject to the ADA as well—it was the nexus between the website and the physical restaurant that brought the website within the requirements of the ADA.
What if your business operates a website or app without a “physical” storefront? In the Ninth Circuit, the courts have held that the ADA does not apply. See Cullen v. Netflix, Inc., 600 Fed. Appx. 508 (9th Cir. 2015) (“Because Netflix’s services are not connected to any ‘actual, physical space,’ Netflix is not subject to the ADA.”)
But, be aware that the rule is different in the First and Seventh Circuits, where the courts have rejected the proposition that a website cannot be a public accommodation without a nexus to a physical place. There, web-based services alone can be the subject of a Title III discrimination action.
Clearly, if your business has a physical location that customers can visit, it must comply with the ADA and is at risk for a discrimination claim if it fails to do so. But, if you plan to do business in some states—like Illinois, Massachusetts, or Wisconsin—you are at risk even if you don’t have a physical location. This is where the right type of Employment Practices Liability (EPL) insurance can help. EPL policies cover claims by employees, but also can cover discrimination claims by third parties. Make sure you have that coverage when you are purchasing or renewing your EPL policy, and check for it immediately if you are threatened with a lawsuit.
ADA and other discrimination claims by consumers are frequently brought in class action form, which can be costly and time-consuming to defend. Your EPL insurance can help mitigate those costs. Although ADA lawsuits frequently request injunctive relief involving, e.g., making changes to a facility or website, which many EPL policies will not cover the costs, the costs of defending a class action claim are covered and, depending on your policy, so might be the costs of paying for the other side’s attorneys’ fees. Note also that ADA claims are often coupled with other causes of action, like alleged violations of the Unruh Civil Rights Act (Cal. Civ. Code § 51. et seq.) or the Calif. Disabled Persons Act (Cal. Civ. Code §§ 54-54.3), which may seek damages that are covered by your EPL policy.