A California federal judge’s ruling this week keeps alive a suit that alleges CVS Pharmacy Inc.’s website and mobile apps do not ensure blind users can access services and could be a violation of federal disability laws.
Uncertainty over the scope of ADA protections has only increased in recent years, sparking a wave of lawsuits that seek to push the reach of the law beyond entrance ramps and bathroom access for people with disabilities. This week, the U.S. Supreme Court turned away an appeal that sought Coca-Cola Co. and other companies to equip vending machines for use by blind people, agreeing with a lower court that the ADA’s protections for “places of public accommodation” does not extend that far
In the CVS case, U.S. District Judge Michael Fitzgerald of the Central District of California ruled in favor of blind users in Reed v. CVS Pharmacy, Inc. and said that the business did not comply with the U.S. Justice Department’s directive to ensure that disabled individuals have equal access to websites. He dismissed the stance that CVS, like many businesses addressing this issue, took that the users were asking the company to abide by non-governmental guidelines.
Joe Manning, a lawyer in Newport Beach, California, who represents plaintiff Kayla Reed in the CVS case, as well as several other clients who are fighting in similar cases for website accessibility, said he believes this is the first court overrule a company’s motion to dismiss an ADA claim related to a mobile app.
A lawyer for CVS—Mark Eisen of Benesch Friedlander Coplan & Aronoff—was not immediately reached for comment. The company will file its answer to the order by Oct. 23, according to court documents.
In the California court ruling, Fitzgerald concluded: “A determination of liability does not necessarily require the court to master complicated web standards, but rather asks the court to make exactly the same sort of accessibility determinations that it regularly makes when evaluating the accessibility of physical locations.”
Judges in other cases this year have reached differing outcomes, offering no clear guidance to companies. Meanwhile, the Justice Department under President Donald Trump has apparently sidelined the issue. “This is a significant event in the course of the federal government’s messaging on this issue,” the law firm Pepper Hamilton wrote in an advisory in April.
Manning represents plaintiff Guillermo Robles in two nearly identical cases in California federal court against Domino's Pizza LLC and against Pizza Hut, owned by Yum! Brands Inc. Another case in Florida, against grocery chain Winn-Dixie Stores Inc. also shows the discordant approach courts have taken to resolve questions about access for the blind to websites.
The recent cases against CVS, Domino’s and Winn-Dixie resulted in opposing rulings. The Dominos and Winn-Dixie cases are heading to respective appeals court in California and Florida. In the Pizza Hut case, U.S. District Judge Otis Wright II issued a stay and permitted the U.S. Justice Department to intervene and provide clarity about the scope of the ADA. The request was the first time a judge took such action.
Since 1996, the Justice Department has said the ADA applies to the web, but there have not been specific rules in place. In 2010, under the Obama administration, there was a notice of proposed rulemaking to determine the existing obligation for websites to have stricter rules, but no rules were issued.
In July, the Justice Department under U.S. Attorney General Jeff Sessions formally moved “website regulation” to the inactive list of issues that it plans to pursue in the near and long-term.
There is also a split among federal appeals court decisions over whether a business that does not have a brick and mortar location can be considered a place of public accommodation, covered by the ADA.
Successful legal actions have been taken against companies such as Apple, Target and Amazon. Certain protocols have been put in place to make it easy for developers to incorporate accessibility features.
There is a universally used system, the Web Content Accessibility Guidelines, to make websites available to blind and visually-impaired people. A case against Apple in 2008 resulted in a settlement between advocates and the Massachusetts Attorney General, requiring iTunes to be accessible to people who are blind. Following this case, Apple developed guidelines for developers to incorporate practices as well.
Many businesses argue that—unlike for websites—there are specific compliance measures they know they need to take with requirements under the ADA. Internet-specific guidelines have not been laid out, and investments made in new technology could still result in more lawsuits. Companies generally say they want to wait for specific guidelines from the federal government before addressing how far the ADA reaches to the web.