I made a rookie mistake after tweeting about my post on the U.S. Supreme Court’s Order in the Domino’s Pizza web accessibility case: I read the comments. Then I compounded that mistake and read comments on articles about the case on main stream media.
The comments were disheartening.
Some were downright mean and screamingly ableist. Some of that ableism was mixed with racism and sexism. Examples of this type of comment include suggesting that Domino’s call on ICE to investigate the plaintiff Guillermo Robles, who has a Latino-sounding last name. Or a harassing suggestion that a blind person should sue strip-clubs so patrons can “feel the dancers like braille.”
Other comments reflected a profound misunderstanding of the meaning and details of digital accessibility, the nature of blindness, the role of civil rights laws in fostering inclusion and preventing discrimination, and the legal process that led to the Supreme Court’s order.
This post can’t change the hearts and minds of people who left comments bitter and abusive. And I’m not going to try. But perhaps those of us who care about digital inclusion can offer information that might help people better understand what was at stake in the Domino’s case and why we must protect the rights of disabled people to participate in the digital world.
This post is my attempt to do just that. Please use the Contact Page or Twitter to let me know if you have any other questions or have read any other troubling comments about Domino’s. I’ll try to answer them in a future post.
Oh — and like everything on LFLegal.com, nothing here is intended as legal advice.
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The Supreme Court Domino’s order is about more than pizza
Many commenters made jokes about the quality of a Domino’s pizza, and the foolishness of wanting to order one on line. These comments miss the significance of the case.
The U.S. Supreme Court’s October 7 announcement that it would not take up the web accessibility case against Domino’s Pizza left intact an Opinion issued by a federal appeals court in the Ninth Circuit. The ninth is one of eleven circuits that make up the United States federal appeals court system.
The Ninth Circuit Opinion said people with disabilities could sue under the Americans with Disabilities Act about websites and mobile applications they cannot use. The Opinion meant that a blind person’s lawsuit against the pizza chain about its inaccessible website and mobile application would not be thrown out of court. Instead, it would go back to the trial court.
The Ninth Circuit did not decide if Domino’s violated the ADA. The Supreme Court’s order not to second-guess means that (unless the parties settle) the trial court will decide whether Domino’s violated the ADA in this case.
Why all the hubbub about a pizza company website? Because the Ninth Circuit opinion that the Supreme Court left alone was about the core right of people with disabilities to use the ADA to support digital inclusion.
The U.S. Supreme Court could have said the Ninth Circuit was wrong. Could have said the ADA was useless in the digital age. Could have given organizations a green light to develop technology that only some people can use.
So the case is about more than pizza. It is about students who need accessibility to graduate. And voters who are locked out of democracy if they cannot use voting websites because of lack of access. It is about patients who want to confidentially review medical records and need accessibility to do so. Account holders who want private access to their online financial information. Citizens who want to participate in a judicial system increasingly moving online.
And yes, about disabled customers who want to order pizza (and other products and services) online like everyone else.
A different Supreme Court outcome could have eliminated ADA rights. It doesn’t mean everyone will win their lawsuits about digital inclusion, but it does mean the ADA remains a source of rights in the digital age.Back to top
Should the plaintiff have picked up the phone?
Many commenters shared the sentiment of this tweeter: “this man couldn’t I don’t know, call the store?????????” The Supreme Court did not decide whether Mr. Robles should have called Domino’s instead of trying to use its website. It only decided that it would not look again at the Appeals Court Opinion. And that Opinion was only about whether the case could stay in court.
Now that the case can stay in court, one question will be whether the telephone provides “effective communication” of Domino’s website content. Effective communication has been required by the ADA since the law was passed 29 years ago. The legalistic language is that a company like Domino’s must provide “auxiliary aids and services” to ensure “effective communication.” Read the ADA regulation about effective communication.
In Domino’s statement about the case the company said it was “disappointed” in the Supreme Court’s decision, but “we look forward to presenting our case at the trial court.” If Domino’s chooses to keep fighting and do just that it will be able to argue that the phone is good enough under the Americans with Disabilities Act.Back to top
Can a phone line really ever substitute for an accessible website?
As stated above, Domino’s will have the chance to argue that its only ADA obligation in connection with its website is to provide a phone line to take orders and answer questions. Will the company be successful?
If Domino’s chooses to fight, there will be discovery on the question of the phone vs. an accessible website. Both sides of the case will ask each other questions, or maybe ask for documents, about what the plaintiff intended to use the website for and what the phone could provide.
There will be arguments to the court that a phone line is or is not effective communication of website content. Perhaps the plaintiff will point out that the website allows users to do far more than order a pizza. That the site offers detailed information about allergens in various pizza ingredients and an interactive chart to calculate calories. Or that some deals are only available online.
Perhaps the defendant will argue that Mr. Robles only wanted to order a pizza, only eats one kind of pizza, has no allergies. Perhaps there will be evidence on how much time it takes to order on the phone vs. the website, or the hours the phone line is staffed. Perhaps experts will testify about the value of independence; the burden of having to talk to someone because you are disabled when people without disabilities can go online.
Maybe there will be back and forth on the very nature of the web as compared to a telephone call. The ability to answer questions about a company or a product that you never knew you had until you visited a website and were able to access its content.
If the parties do not settle the case, all of these factors and many more will go into a judicial determination of whether calling a phone line is equivalent to independent website access. Think of the hundreds of thousands of dollars that will be spent in such an endeavor when true accessibility is easily in reach.
In my view, a phone line can never substitute for an accessible website. But the law gives Domino’s the chance to make the argument.Back to top
The Supreme Court Order does not require Domino’s to hire blind delivery drivers
One commenter fumed that “next they’ll sue Domino’s for not hiring blind delivery drivers.” Primarily this is a crack at lawsuits generally, but it also misses something important about the ADA.
The ADA does not require a company to do something that would be a “direct threat to the health or safety of others.” If a company has a question about the safety of drivers with certain types of vision disabilities, this provision would come into play.
The joke about blind delivery drivers also reveals unfounded assumptions. Several years ago a federal highway safety agency issued a regulation that allowed otherwise qualified people who were blind in one eye to obtain a license to drive a truck. The agency found that these drivers could safely operate a commercial vehicle.
And to the car-related commenter who wrote “I guess this means he can sue the car companies that don’t make cars for blind people to drive:” No it doesn’t mean that. But in the era of self-driving (autonomous) vehicles let’s not make assumptions about who can drive what. We do know that the ADA will make sure efforts to avoid discrimination do not risk anyone’s safety. Read the ADA regulations about Direct Threat.Back to top
Will the Plaintiff get rich off of the Domino’s lawsuit?
Short answer: No.
After acknowledging that he would “get chastised” for his comment, one reader surmised that the plaintiff in the Domino’s case “saw a quick few half a million dollars and rolled with it.” Another concluded that “Plaintiff is a gold digger.” Doubtful.
Remedies under the Americans with Disabilities Act do not include money for the disabled person bringing the lawsuit. In some states, civil rights laws do allow plaintiffs in disability rights lawsuits about inaccessible websites to be compensated if they win the case under state law.
California, where the Ninth Circuit is based and Mr. Robles lives, is a state that has this type of law. The Supreme Court’s order has nothing to do with it. When damages are awarded in such a case, individuals recover a tiny tiny fraction of the commenter’s idea of half a million dollars.Back to top
Is the Domino’s case only about enriching lawyers
Short answer: No.
The many, many anti-lawyer comments following the Domino’s news is summarized by these three words and two exclamation points penned by one commenter: “Lawyers everywhere rejoice!!”
More than fifty years ago the U.S. Congress decided that when someone brings a successful discrimination case, the organization (such as a private company, government agency, or education institution) found to have discriminated should pay the attorneys fees that the discriminated person had to spend to bring the case.
This is called “fee-shifting” because usually in the United States, plaintiffs must pay their own lawyers, either up front, or from what they recover in a lawsuit. In civil rights cases the burden of paying an attorney is “shifted” so the defendant pays.
Fee shifting exists in all types of discrimination cases including race, gender, and disability. Without fee-shifting, there would be very little civil rights enforcement in the United States. Anyone who believes in equity and civil rights should support fee shifting.
And fee-shifting is not just about conflictual lawsuits. It also allows collaborative practices including Structured Negotiation to succeed. In a relationship-building process to resolve legal claims, when people bringing those claims need lawyers, fee shifting ensures they can have them.
So are lawyers rejoicing? Lawyers who understand that without fee-shifting the ADA would not be enforced breathed a collective sigh of relief with the Supreme Court’s order. But not for the reasons suspected by the commentator.
Lawyers and non-lawyers alike celebrated the court’s order because any other outcome could have threatened the Americans with Disabilities Act, the foundational law that supports disability inclusion in the United States. Including digital equality.Back to top
Do lawyers file too many web accessibility lawsuits and abuse the system?
Many commenters, like this one, were frustrated by lawyers who sue under the ADA yet do not seem to care about digital accessibility: “Ok, but how about some immediate disciplinary action against lawyers that go around suing multiple businesses under the same law, rather than just look for improvement.”
I’m concerned about certain lawsuits in the digital accessibility legal space too. I wrote about that in my piece titled Ethics in the Digital Accessibility Legal Space: ADA Enforcement Cases or Something Else?
As I wrote in that piece, I believe there are lawyers who “have seized on the Americans with Disabilities Act as a quick money-maker, with no concern for possible backlash or creating bad precedent.” But as I also wrote, we cannot let “bad actors set bad policy.”
Organizations including the United States Chamber of Commerce filed “friend of the court” (amicus) briefs in support of Domino’s arguments to the Supreme Court. These briefs bashed these questionable lawsuits and asked the court to take the case and put a stop to them.
I’m glad the Supreme Court was not swayed by these arguments. Eliminating ADA rights in the digital age for disabled people throughout the United States is not the solution to a few law firms filing web accessibility lawsuits for the wrong reasons.
Find links to the briefs filed in the Domino’s case on the Supreme Court website.Back to top
Digital Accessibility is not about a “blind mode and a deaf mode.”
At the center of many post-Domino’s comments is a profound misunderstanding of what it means for a website or a mobile application to be accessible. One tweeter said “The idea that every website needs to have a blind mode, a deaf mode, and who knows what else… it’s a can of worms, and will lead to hundreds of frivolous lawsuits over something that’s really stretching sensibility.”
Another wrote: “it is ridiculous that he is able to sue to them due to the nature of websites, which rely on sight.”
While some people “rely on sight” to navigate a website, others rely on their hearing. Still others depend on fingers that read Braille. Websites themselves do not rely on sight. Nor do they rely on the ability to hold a mouse or listen to audible video content.
Accessibility means that people with disabilities can read, create, and interact with digital tools and content. Accessibility is achieved with responsible design and development according to well accepted international standards — standards first adopted more than twenty years ago. Accessibility sticks with responsible evaluation and testing to ensure websites and mobile applications stay usable through new releases and next generation enhancements. Policies and practices help ensure digital content and tools remain usable.
Unlike some commenter’s assumptions, Domino’s will not have to offer special sites for people with different disabilities. The company will not have to buy blind people special equipment.
An accessible and well designed web site and mobile application will work for everyone. Its features will be “essential for some, useful for all.”
Of course, there were many Domino’s comments from people who supported and cheered the Supreme Court Order. I am grateful to be in a global community with people and organizations, including large global corporations, who work tirelessly to make sure the digital world is not closed to people with disabilities (including seniors, veterans, and those of us who most likely will acquire a disability in the future).
The Domino’s order means the law in the United States won’t stand in the way of that work. The Domino’s order means the Americans with Disabilities Act will continue (at least for now) to be a tool in the global movement towards digital inclusion.