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A sign at a Domino's Pizza that reads "Delivering oven-naked goodness since 1960" with the Domino's domino-piece logo.
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THE BLIND LEADING THE BLIND

Domino’s Pizza delivers a game-changing case to the US Supreme Court

Ephrat Livni
By Ephrat Livni

Senior reporter, law & politics, DC.

You might imagine that the internet has made life easier for people with disabilities, who can now access the same conveniences as everyone else without having to go to physical locations. However, that is not necessarily the case. The web is not a tangible place but its spaces still present obstacles to some, and the US law designed to ensure equal access to all—the Americans with Disabilities Act (ADA)—didn’t contemplate the abstractions of postmodern life when it was passed in 1990.

Now, Domino’s Pizza is asking the US Supreme Court to review a case about the ADA (pdf), which guarantees equal access to public accommodations, and how precisely it applies to the internet and apps, if at all.

The question seems almost quaint at first glance. While the ADA was written with physical places in mind, the realness of online spaces is undeniable. Government representatives use social media to make official statements, consumers purchase goods online, relationships are born on dating apps, and the gap between physical reality and abstract locations has narrowed to the point that it’s almost nonexistent. The things we do and say online impact physical life and vice versa.

But once you start to consider the issue a bit, it becomes more complex, as it calls into question postmodern existence itself. If the court were to decide that the ADA doesn’t apply online, it would contradict rulings in other contexts acknowledging the web as an intertwined aspect of American life, part and parcel of reality, not divisible or abstracted at all. If the court decides that the ADA does apply, however, every business and service in the US will risk liability if it doesn’t render its web pages, links, videos, gifs, and images readable to all—that means major expenses and lots of labor and continual work updating content. Domino’s claims that such a ruling will deter new businesses and drive others off the web.

A site is not static like a physical locale, so from a business perspective compliance will be much more difficult than creating a wheelchair ramp, say. From a blind internet user’s perch, however, it’s clear that only getting a bit of the information online or parts of a service doesn’t amount to equal access. For all internet users, the conclusion of this matter could have a very large impact on the future of the web. If sites are public accommodations that must provide equal access and providing this proves taxing on the businesses and institutions who operate in whole or in part online, as Domino’s claims it will be, we could all theoretically see a more sparse web with information updated less frequently or the complexity of offerings simplified. In other words, this case is about much more than one blind man’s custom pizza delivery order and that’s why Domino’s says the Supreme Court must step in.

Where we are today

Circuit courts across the country are split on this issue. In the Ninth Circuit, where Domino’s was sued, the appeals court ruled that the ADA applies to the pizza giant’s website and app because it also has actual places of business, brick-and-mortar shops. In some circuits, courts consider the statute applicable to all websites, while in others the ADA is only applied to physical places of business and not those on the internet.

The debate began when Guillermo Robles, a blind customer who could not, using special software, order a pizza from the Domino’s website or app directly, sued the company for failing to comply with the ADA. Domino’s argues that the suit is part of a “flood of litigation that will soon turn into a tsunami” if the high court doesn’t clear up confusion about whether websites that serve the public must comply with the ADA and to what extent, noting in its petition:

Plaintiffs have pursued restaurants, retailers, grocery stores, car dealerships, hotels, banks, exercise studios, and universities. Their suits claim that these defendants’ websites were inadequately accessible to individuals with disabilities, and that this alone triggers ADA liability. Plaintiffs have gone after New York’s art galleries in alphabetical order, claiming that their websites inadequately describe the artwork and other products available at those places of public accommodation. Plaintiffs have even sued Beyoncé, alleging that her website is a public accommodation that is insufficiently accessible to visually impaired users.

Domino’s points out that the ADA didn’t contemplate online spaces and that the Department of Justice in 2017 abandoned a longstanding effort to articulate rules about internet accessibility for the disabled. So, with the circuits split and no established standards, attempting to comply with nonexistent norms leaves companies vulnerable to more lawsuits no matter what they do to improve website accessibility. The process of rendering every aspect of a website accessible to a visually impaired person is costly and long, Domino’s contends, and there’s no sense of what compliance with the ADA—if it’s required—would really look like.

“This Court’s review is imperative to stem a burdensome litigation epidemic,” Domino’s lawyers write. They note that in 2018 alone, litigants filed over 2,250 federal lawsuits asserting ADA violations based on website inaccessibility, nearly tripling the number in 2017.

Domino’s isn’t entirely ignoring the needs of the disabled. It is arguing that the company offers other means of ordering a pizza besides the website and app, so that even if the ADA applies to websites, it’s in compliance because a customer can call for food, too, for example. However, the Ninth Circuit ruling indicates that every means of accommodating other members of the public must also be available to the disabled, including a direct custom order from the website and app in this case. And the reason Domino’s must offer internet accommodations, according to the court, is because it also has physical stores.

In other words, if Domino’s only operated online it wouldn’t have to comply with the ADA’s accessibility mandates. The company says that the Ninth Circuit compounded one error with another when reaching this conclusion. Domino’s points to the past for evidence of the fact that the ADA never required companies to ensure a disability-friendly alternative to every aspect of its services, explaining:

Since before the advent of the Internet, department stores have sent customers mail-order catalogues … Companies have also deployed door-to-door salesmen and maintained telephone hotlines as additional ways for customers to place orders without having to visit their physical locations. Those methods parallel today’s websites and mobile apps. Yet, under the Ninth Circuit’s view, these longstanding methods would have violated [the ADA] unless the mail-order catalogues were available in Braille, the door-to-door salesmen knew American Sign Language, and the telephone hotlines were equipped for the hearing-impaired.”

Futuristic rulings

If the high court takes the case, Domino’s will no doubt have much more explaining to do. The justices have in recent years had to contend with quite a few questions about tech culture and how old rules apply to our brave new world. They have proven themselves to be comically postmodern in their understanding of technology, even if they may seem stodgy.

In 2018, the high court ruled that cellphone location data, which alone offers no substantive information about an individual, nonetheless requires a warrant for law enforcement to search it because cumulatively the points we pass with our phones in hand, which are pinged to cellphone providers’ towers, tell the tale of our phone’s comings and goings, and therefore, most likely, our activities as well. In 2017, justices held that social media is the contemporary public square and that barring convicts from access to platforms like Facebook and Twitter is a First Amendment violation.

The Supreme Court has seemed disinclined to distinguish life online from the physical world because the two modes are so deeply intertwined by now. It seems likely then that the justices will ask Domino’s to explain how the ADA’s definition of public accommodations could possibly exclude the internet at this point.

Domino’s has an answer ready, based on its petition for review. If representatives want to include the internet in the ADA’s definition of public accommodations, they’re free to do so. But the courts can’t decide what representatives meant retrospectively, especially when it imposes such a burden on companies. The petition concludes, “Congress … passed a statute to apply only to places of public accommodation, which must be physical locations, and only to ensure adequate overall access to the benefits of those places. Any different policy choice is up to Congress, not the judiciary.”

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