Latest Website Accessibility Decision Further Marginalizes the Viability of Due Process and Primary Jurisdiction Defenses
In the latest of an increasing number of recent website accessibility decisions, in Gorecki v. Hobby Lobby Stores, Inc. (Case No.: 2:17-cv-01131-JFW-SK), the U.S. District Court for the Central District of California denied Hobby Lobby’s motion to dismiss a website accessibility lawsuit on due process and primary jurisdiction grounds. In doing so, the Hobby Lobby decision further calls into question the precedential value of the Central District of California’s recent outlier holding in Robles v. Dominos Pizza LLC (Case No.: 2:16-cv-06599-SJO-FFM) which provided businesses with hope that the tide of recent decisions might turn in their favor.
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).