Domino's pizza

Domino’s Takes ADA Lawsuit Over Website Accessibility to the Supreme Court

By now, you know that accessible communications are just as beneficial for brands as customers who need them. However, the necessity of such communications has been called into question with Domino's ADA lawsuit. Allow us to explain.

A Brief History Lesson

The world wide web was invented in 1989 by Sir Tim Berners-Lee, a British computer scientist (and Queen's knight). By 1995, the Internet was under rapid adoption by Silicon Valley techies, and wasn't mainstream in households until 2001. So, when the Americans with Disabilities Act (ADA) was passed in July, 1990—10 years before the average consumer had access to the Internet—it made no mention of digital spaces. The Internet's invention changed the interaction dynamic between brands and customers. Today, e-commerce is a major contributor to the US economy and impacts many business’s revenue strategies—like how customers order a pizza. While the Internet is invaluable to brands and consumers, its quick evolution is challenging the reach of some US laws that don't explicitly mention it, including the ADA. Domino’s ADA lawsuit over website accessibility resurfaces the question of whether all businesses should be held to the “unnecessary”, “expensive”, and “unclear and shifting standards” (Domino's words) of providing digital accessibility.

To be clear...

Accessibility is necessary, which is why it’s low barrier and low cost, so any brand can implement it—even a multi-national pizza chain. The Web Content Accessibility Guidelines (WCAG) standards are ADA-compliant and give very clear online accessibility specs, even if the ADA law itself does not explicitly mention "digital spaces".

The Story

Back in 2016, blind California resident Guillermo Robles filed a lawsuit against Domino’s. He was unable to use their website or mobile app to order pizza due to incompatibility with his screen reader. The district court did not hear the case, so Robles's appeal sent it to The Ninth Circuit Court of Appeals, which ruled in Robles's favor. Now, Domino's is appealing with a writ of certiorari—directly to the Supreme Court.
writ of certiorari: an argument as to why the nation's highest court should hear the case.
The Supreme Court receives about 7,000 to 8,000 writs of certiorari per year. These writs allow them the discretion to decide whether or not to actually hear a case. Of the thousands of requests they receive, they'll only hear about 100-150 of them.

A brief note on how the Supreme Court works

The Supreme Court doesn't hear any case that lower courts have not already heard. Rather, it tends to hear cases that have split results from two lower courts and act as the final judgement. Typically, the Supreme Court will look at rulings from both lower courts to help make a decision. It will rarely hear a case that both lower courts agree on. In this case, since there's only one lower court ruling, the outcome can go either way.

The Legal Question

When Robles filed his 2016 lawsuit, the only remedy he was seeking was an accessible website to order pizza. Robles was not seeking monetary damages or any other financial compensation. Rather, simply the ability and convenience to order a pizza from his home like anybody else. Title III of the ADA "prohibits discrimination on the basis of disability in the activities of places of public accommodations." The question the Supreme Court has to answer is this: do consumer websites fall under "places of public accommodations" or don't they? That's where the appeal comes in. The Ninth Circuit Court ruled that, yes, websites do count. It's now up to the Supreme Court to decide whether to uphold that decision. Again, that is if they decide to take the case. The only thing Domino's has done is submit a writ of certiorari, asking the Supreme Court to hear it. If the Supreme Court declines the request, The Ninth Circuit Court of Appeals's ruling will stand and Domino's will have to implement accessibility into their website and mobile app. However, if the Supreme Court accepts the request, this fight will be far from over.

The thing about laws...

To a degree, laws are intentionally vague. That accounts for the cultural shifts that naturally occur (such as the invention of the Internet), so they can be kept enforceable and relevant. That's why the Constitution is still the backbone of the US, even though it was written over 240 years ago. It was written in such a way that allows for it. Laws pass on the assumption that they will always be relevant, but merely have to be somewhat vague to stay enforceable. In this case, "places" is where the vagueness lies, and also where the law must pertain.

Setting Precedent

The Supreme Court only hears about 100-150 cases every year, so it's kind of a big deal when they take one. Their decisions set precedents that can have a profound impact on culture for decades to come.

If the Supreme Court chooses to hear the case, there are two possible scenarios:

Scenario A

Domino’s wins and brick-and-mortar enterprises (businesses they’re aiming to exemplify from ADA web compliance) won’t have to make their websites or mobile apps accessible. This is going to create a domino effect (no pun intended) of other businesses wanting exemptions as well. Meanwhile, use of these digital spaces will remain impossible for disabled users.

Scenario B

Robles wins and it will be one of the biggest victories for the ADA since its signing. If the Supreme Court upholds the lower court's ruling, it will lay the groundwork for all current and future US businesses with an online presence to ingrain accessibility it into their systems. As a result, America's Internet could see a more rapid adoption of accessibility standards.

The Ethics of Accessibility

Accessibility does not exist for business’s convenience so they can pick and choose what they’d like to make accessible. Accessibility exists for the convenience of the people who need it. The need for accessible digital spaces is only growing as the world becomes more mobile. Disabilities aren't going away in the world. So the earlier a business can optimize for accessibility, the easier (and cheaper) it is to do. Plus, we don't know where technology will be in another 30 years. It's more efficient to bake accessibility into practices right now instead of running the risk of it being a more expensive process later on. Making exemptions for certain businesses to not have to accommodate for accessibility sends the inaccurate message that accessibility isn’t necessary. Right now, Domino's is under the impression that they are championing other brick-and-mortar enterprises who don't want to implement accessibility either.

The ROI of Accessibility

Plus, on the business side, making a webpage or mobile app accessible is only going to increase revenue. The more people that can view, navigate and purchase from your site, the better for your bottom line. The fact is, accessibility benefits everyone. Brands who make accessible marketing emails a priority see a boost in ROI. Actively excluding millions of people from being able to use your services at their convenience severely hinders revenue potential. Think about it: if you had to go to a pizza shop every time you wanted a slice, would you? Asking disabled people to just go to the brick-and-mortar locations puts an undue burden on them that other customers don't face.

What Happens Next

Domino’s utter resistance to implementing accessibility and their willingness to spend much more money to fight it with litigation than what it actually costs to implement isn’t winning any customers’ good graces. The way we see it, if a business has no barrier for any customer to use its product or service (other than the ability to pay), then that business must be held to accessibility laws that apply in every other functional sector. Even if Domino’s wins the lawsuit, their victory won’t exactly be one they can capitalize on from a PR standpoint. How does a pizza chain drum up excitement about being exclusive to abled users? They are quite literally going out of their way (and taking the expensive route, mind you) by pursuing further litigation, rather than just making their site accessible now, for cheap. Although Title III doesn’t call out “websites” or “digital spaces”, it does call out “places of public accommodations” and in today’s culture, especially about 30 years into the age of tech, a “place” can absolutely refer to a digital environment.

UPDATE: Supreme Court Denies Domino's Writ

This article was updated on October 9, 2019 as a case development was released.
A CNBC report on October 7, 2019 states that the Supreme Court has rejected Domino’s Pizza’s writ of certiorari. The justices announced their decision via an order (page 18 under the headline Certiorari Denied). The rejection effectively blocks Domino’s attempt at a higher court hearing and keeps The Ninth Circuit Appellate Court’s earlier decision in place, requiring Domino’s to make their website and mobile app accessible. Now, Domino’s only option to continue fighting this is to do so in a trial court. This is a major win for the ADA and accessibility advocates. Robles’s attorney, Jon Manning, said in a statement:
“The blind and visually impaired must have access to websites and apps to fully and equally participate in modern society - something nobody disputes. This outcome furthers that critical objective for them and is a credit to our society.”
CNBC also reports that in 2018 alone, over 2,200 accessibility lawsuits were filed in federal courts. That number was nearly tripled from 2017. The need for accessibility isn’t going anywhere, and contradictory to un-researched beliefs, there are clear, ADA-compliant standards for digital accessibility. The earlier businesses implement these standards into their systems, the easier and cheaper they are to maintain in the long run.
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