In a post published earlier this year, we commented on a surge of lawsuits being filed under Title III of the Americans with Disabilities Act (“ADA”). Title III of the ADA prohibits discrimination in the full and free enjoyment of public accommodations on the basis of disability. Where websites and mobile applications serve as extensions of brick-and-mortar stores, some courts have held that retailers are responsible for accommodating disabled consumers on their online platforms.

We previously noted the lack of authoritative guidelines for businesses seeking to adjust their websites to comply with the law. Despite issuing a notice of proposed rulemaking seven years ago, the Department of Justice has still not promulgated regulations defining accessibility as it applies to web-based tools.  In the fall of 2015, the Department of Justice announced that it would issue the proposed regulations in 2018. However, President Donald Trump’s Executive Order 13771 will likely delay the release of such proposed regulations even further. Trump’s executive order places restrictions on new or pending rulemaking, slowing existing initiatives and requiring reconsideration of departmental priorities moving forward.

As companies await official guidance from the Department of Justice, some rely on the Web Content Accessibility Guidelines 2.0 issued by the World Wide Web Consortium. As we explained in a prior piece, the Guidelines specify ways by which retailers may improve the accessibility of online tools for those with disabilities. The Department of Justice regularly uses the Web Content Accessibility Guidelines in structuring settlement agreements with companies charged with non-compliance of the ADA. Some legal experts predict that the forthcoming official Department of Justice regulations will resemble these guidelines.

While website accessibility actions continue to bombard retailers, two recent decisions may indicate courts’ increasing skepticism of the claims. In Andres Gomez v. Bang & Olufsen America, Inc, a Florida district court held that the ADA does not require places of public accommodation to create full-service websites for disabled persons, as there is no obligation for places of public accommodation to have a website at all. The court explained that the ADA only requires that a website not impede a disabled person’s ability to do business at a retailer’s physical store. In this case, because the retailer’s website did not interfere with plaintiff’s ability to purchase their merchandise offline, the court dismissed plaintiff’s claim.

In Robles v. Dominos Pizza LLC, a California district court granted Dominos Pizza’s motion to dismiss under the primary jurisdiction doctrine. The doctrine, which has been rejected by other courts, provides for the dismissal of lawsuits pending the resolution of an issue by a government agency. Relying on the fact that the Department of Justice has not yet offered meaningful guidance on website accessibility requirements, the court found that holding Dominos to have breached the Title III of the ADA would violate Dominos’ due process rights. In reaching this decision, the court effectively rejected requiring compliance with the Web Content Accessibility Guidelines without designating concrete minimum achievement standards.

It remains to be seen whether these decisions are outliers or first in a wave of jurisprudence hostile to website inaccessibility claims. Until the Department of Justice’s regulations are promulgated or further court decisions are released, businesses would be well-advised to consult the Web Content Accessibility Guidelines when designing or making changes to their websites and mobile applications. Notwithstanding that advice, retailers should also consider the delayed implementation of regulations as a potential defense to website inaccessibility claims.