In 2016, Guillermo Robles sued Domino’s because the pizza chain’s website and app didn’t work with screen-reading software, making their online services inaccessible to him and other users with visual impairment. Robles, who is blind, claimed that on at least two occasions, he was unable to order a custom pizza from the company’s website, so he sued, alleging that Domino’s had violated the Americans with Disabilities Act (ADA).
At the time of the lawsuit, a district court ruled that Domino’s negligence to create an accessible website for people with visual impairments did violate the ADA, but because the Department of Justice “had failed to provide helpful guidance” on what specifically constitutes an ADA-compliant website, the court ultimately granted Domino’s motion to dismiss, since such regulations would eliminate any due process concerns.
But the Department of Justice ended up scrapping its plans to roll out such guidelines, thousands of similar lawsuits have since been filed against businesses failing to make the digital extensions of their services accessible, and the fight to make the web a more inclusive place remains a thorny and shifty legal issue.
The Domino’s lawsuit serves as a model example of the fight between businesses and people with disabilities over the enforcement of accessible online services, even in the absence of set federal guidelines. Though the district court originally dismissed the case, a federal appeals court ruled in favor of Robles this year, deciding that accessibility standards apply to online services just as they apply to businesses covered by the ADA.
This was an important win for accessibility rights online. But now, in what experts say is an unprecedented move, Domino’s wants to take this case to United States Supreme Court. If the company gets its way, the potential decision could have dire implications for online accessibility and the fate of similar lawsuits that, like Robles’, are chipping away at the internet’s tenacious and appalling inaccessibility.
Lawsuits like Robles’ are hardly uncommon. In fact, thousands of cases involving inaccessible websites have been filed in federal court in just the last year. But Domino’s case is unique among this flood of lawsuits in its decision to file a motion to have such a case heard by the nation’s highest court. If the case is picked up, the pizza chain that is arguably most associated with online delivery would have a chance to make history in its refusal to accommodate customers with disabilities.
The argument in favor of Robles is that the ADA extends beyond just “places of public accommodation,” which are specifically covered under Title III of the ADA. The U.S. Court of Appeals for the Ninth Circuit ruled in Robles v. Domino’s Pizza that businesses with physical accommodations—namely, a Domino’s restaurant—need to ensure that websites and apps used to access covered services are accessible for people with disabilities. This includes supporting screen-reading software so that blind users like Robles are able to navigate and interact with digital content.
Title III of the ADA specifically “prohibits discrimination on the basis of disability in the activities of places of public accommodations.” Historically, this referred to brick-and-mortar spaces, and in the absence of language that directly applies to the digital world the omission creates a shifty loophole for businesses hit with these types of lawsuits. But the Ninth Circuit put consequential weight on the word “of” in its Robles decision.
“Even though customers primarily accessed the website and app away from Domino’s physical restaurants, the panel stated that the ADA applies to the services of a public accommodation, not services in a place of public accommodation,” the court said in its decision (emphasis theirs). “The panel stated that the website and app-connected customers to the goods and services of Domino’s physical restaurants.”
Using this reading of Title III, the Ninth Circuit overturned a 2017 decision from the U.S. District Court for the Central District of California to dismiss the case on the grounds that, because the Justice Department has not yet issued regulations governing how Title III applies to the internet, requiring Domino’s website and apps to comply with the ADA was a violation of its due process rights under the Fourteenth Amendment.
“While we understand why Domino’s wants DOJ to issue specific guidelines for website and app accessibility, the Constitution only requires that Domino’s receive fair notice of its legal duties, not a blueprint for compliance with its statutory obligations,” the Court of Appeals for the Ninth Circuit wrote in its appeal in January of this year.
Because of these conflicting federal court decisions, Domino’s petition to the Supreme Court to review its case argued that the lawsuit was in violation of its due process rights, pointing out that “Title III says nothing about websites or applications on smartphones.”
It’s an argument that boils down to semantics and willfully ignores the state of our modern world, one that, for many, is largely contingent on access to goods and services online. And it also willfully misinterprets the scope of the ADA, a powerful civil rights law that isn’t confined merely to prohibiting discrimination in brick-and-mortar establishments—at least, not yet.
A ‘litigation tsunami’
Minh Vu, an attorney at Seyfarth Shaw LLP and a leading expert on ADA website accessibility matters, characterized the rise in lawsuits brought under Title III as a “litigation tsunami,” adding that their firm’s data shows that in 2018, there were over 2,250 lawsuits involving websites filed in federal court. “An astonishing number if you think about it,” she told Gizmodo. And they’re not confined to smaller organizations that may not have the resources to include all users—lawsuits were filed against Glossier’s website and Beyonce.com in the last year for failing to be ADA-compliant.
“When you make an argument that the broadest disability civil rights law, certainly in this country, and one of the top in the world, doesn’t cover the place where everybody is interacting, that is exclusionary,” Lainey Feingold, an author and disability rights lawyer who focuses on digital accessibility, told Gizmodo. “That is just painful.”
Vu said that a majority of these lawsuits resolve without going to final judgment. In the case against Domino’s, the Supreme Court will reportedly decide in the fall whether it will even hear the case, and there are only a few possible outcomes.
One is that the Supreme Court decides not to take the case, which basically means nothing would change from how they are right now—lower courts will continue to hear these cases and no Supreme Court precedent will have been set.
If the Supreme Court does decide to take the case, and it rules that the lawsuit doesn’t violate Domino’s due process rights and that the United States Court of Appeals for the Ninth Circuit was correct in its assertion that this claim has the legitimacy to be heard in the lower courts, that would set a precedent for any circuits that haven’t yet decided this issue, disability rights attorney Eve Hill told Gizmodo in an email. Hill added that it wouldn’t, however, change anything should the Supreme Court rule in favor of the plaintiff because no circuit court, or district court that she is aware of, “has held that websites of places like Domino’s are not covered.”
Alternately—and this is the worst-case scenario, as far as accessibility rights are concerned—the Supreme Court can rule that it’s unfair to businesses to hold them responsible for not making their online properties accessible as dictated by Title III of the ADA since they were never given set accessibility standards. If that were the case, “that would shut down all these cases immediately,” Vu said.
“Domino’s believes that discrimination against individuals with disabilities is wrong and fully supports efforts to make websites and mobile apps more accessible,” a Domino’s spokesperson told Gizmodo in an email. “Domino’s is also committed to accessibility and has a strong interest in reaching all customers, including those with disabilities. In fact, we provide many different ways to connect with our brand and menu, including a number of voice-activated devices that can order digitally and a voice-assistant found on both our website and mobile apps.
“We are seeking review of this issue because we, together with the broad array of business groups and non-profits, oppose having the plaintiffs’ bar set a moving target for the standards that websites and mobile apps should meet.”
Domino’s wouldn’t expand on what it meant by a “moving target for the standards that website and mobile apps should meet,” nor would it say what a doomsday scenario would look like if Domino’s fails to succeed at the Supreme Court. One would imagine that a lack of compliance specifics could be beneficial to a company. After all, it just has to make sure that a protected group can use a website rather than following a particular protocol to achieve that goal. When we asked on multiple occasions how complying with the ADA on the web and apps could create an undue burden for Domino’s, a spokesperson declined to give a single example of the type of slippery-slope scenario that they hint at in their justification of bringing the lawsuit.
A bad excuse
The Justice Department said in 2010 that it was going to issue regulations that would give public accommodations and businesses like Domino’s a set of guidelines on what constitutes an accessible website. But that never happened. “Businesses were kind of caught, not unaware, but caught unprepared because they were waiting for regulations to follow,” Vu said, adding that around that time, plaintiffs began filing suits in court against companies that failed to accommodate people with disabilities.
And while the U.S. government failed to roll out set regulations regarding online accessibility measures, the widely accepted Web Content Accessibility Guidelines were published by the Web Accessibility Initiative of the World Wide Web Consortium in 1999. We just passed the 20th anniversary of these standards, and those arguing in favor of Robles and other lawsuits alleging inaccessible websites violate the ADA point out that even though DOJ didn’t roll out specific guidelines for businesses, there are clearly outlined resources available for them to figure it out and make the digital extension of their services more inclusive.
While businesses might argue that they need prescribed guidelines that are analogous to the types of regulations that govern a physical space, the fact is web standards change far more rapidly than regulators would be likely to keep up with.
“When you’re a business you have to know how to do things, and including more customers and respecting the civil rights of disabled people is something that you just need to know how to do,” Feingold said. “These companies have to treat accessibility the same way they do privacy and security.”