No Published Guidelines Doesn’t Mean No Standards
It’s been nearly four years since Domino’s was first challenged with a lawsuit when California plaintiff Guillermo Robles, who is blind, was unable to order a pizza because the website was inaccessible to his assistive technology. In hopes of reaching as many customers as possible, one would think that Domino’s would simply have fixed the problem and moved on. But for both the Robles and Domino’s, the situation went deeper than just a pizza order. Robles v. Domino’s Pizza claimed that because Robles could not order his pizza using the same features on the Domino’s website as a sighted person, Domino’s had violated his ADA rights.
When the case first went to trial, a federal judge in California dismissed the case. While he agreed with the plaintiff that websites should be included as places of public accommodation under Title III of the ADA, he upheld Domino’s objection that because the Department of Justice never created specific guidelines as to how businesses should comply with Title III, Domino’s’ due process rights would be violated by this case.
Robles Appeals to 9th Circuit
Plaintiff Robles appealed to the 9th Circuit Court of Appeals, the Federal court which covers Alaska, Arizona, Idaho, California, Hawaii, Montana, Nevada, Oregon, and Washington, to review three issues: 1) Should the ADA apply to Domino’s website and app; 2 ) if so, does that raise due process concerns; 3) should the court invoke the primary jurisdiction doctrine because the DOJ has not provided guidance.
The 9th Circuit Court ruled, as it has in the past, that the ADA should apply to Domino’s website because it constitutes a service of Domino’s, which makes it a place of public accommodation. It does not raise due process concerns because the issue was not whether Domino’s had followed a specific set of standards, but that Domino’s website had failed to be accessible to everyone, an issue which falls under Title III of the ADA. Finally, the 9th Circuit held that the primary jurisdiction doctrine should not be used because “Courts are perfectly capable of interpreting the meaning of “equal” and “effective” and have done so in a variety of contexts.”
Having ruled that due process was followed and the ADA was applicable, the Circuit Court of Appeals remanded the case back to the District Court to decide whether Domino’s website had been sufficiently accessible to comply with the ADA.
Domino’s Appeals to the Supreme Court
Before the case went to trial with the district court, Domino’s petitioned for a Writ of Certiorari hearing with the US Supreme Court. They wanted a clear answer, for themselves and the business community at large, to the larger question: whether or not the ADA applies to websites or only to physical places of public accommodation.
Domino’s appeal to the Supreme Court was backed by the United States Chamber of Commerce, which wrote an amicus brief on Domino’s behalf. The Chamber of Commerce has long been concerned that the lack of specific guidelines in the area of web accessibility leads to lawsuits, which may discourage companies from building an online presence for their businesses.
Had SCOTUS chosen to hear the appeal, it may have had nationwide implications regarding the way Title III of the ADA is applied to the digital world. Historically, this decision has been left up to circuit courts, who have had mixed ideas about whether or not the ADA, which was established in 1990 when the internet was in its infancy, was intended to apply to websites. Instead, the Supreme Court declined to hear the case.
What did the Supreme Court mean by their rejection of the Domino’s case?
The Supreme Court gave no reason for denying the request to hear Domino’s appeal. Usually, SCOTUS only declines to hear cases that will not present any new or nationally impactful legal implications. While this decision would have national implications, it would not be a new decision. By not specifying any additional ruling, the decision of the lower court stands, and SCOTUS quietly acknowledges its agreement with the 9th Circuit Court of Appeals. This circuit has ruled in the past that a website with a nexus to a place of public accommodation is considered “a service.” Title III of the ADA mandates that all places of public accommodation and their services must not discriminate against those with disabilities. According to the 9th Circuit Court of Appeals, that includes making websites equally accessible for people who use assistive technology.
This decision, while provided by the 9th Circuit Court covering specific territory, impacts anyone with a website, because websites aren’t bound by geographic location, not just those in their district like Robles v. Domino’s Pizza. National retailers and other organizations usually have some presence within the 9th Circuit because their websites are available nationwide, even if their physical locations are elsewhere. This means that a resident of the 9th Circuit accesses a website, the website falls under the 9th Circuit’s jurisdiction.
Why is the Absence of Published Guidelines a Problem?
Domino’s and the US Chamber of Commerce assert that without published regulations, many organizations don’t know how to begin the process of making their digital resources accessible and that even if attempts are made to ensure their websites accessible, they could still be sued.
Domino’s thought they were making their services available to everyone by providing an alternative to online ordering for those who were unable to access it- they had established a 24/7 hotline and had voice ordering enabled for devices like Alexa and Google Home. They even have their own voice ordering assistant called Dom. But the plaintiff did not consider those features to be equal to online access.
Without specific published regulations, businesses have no clear defense against lawsuits. They cannot objectively compare their site to a list of guidelines and demonstrate in court exactly how they complied. They can only attempt a defense based on demonstrating how they believe they’ve made themselves accessible to everyone, which may or may not be considered “equal and effective” by the plaintiff or the court.
This ambiguity over what exactly is considered accessible in a way that is effective (usable by everyone) and equal (as easy and convenient as other options) has been blamed with the dramatic uptick in digital accessibility litigation.
Congress’s Request for Guidelines Denied
The Senate has called for the Department of Justice to issue clear guidance for accessibility. In 2010 the DOJ issued an Advanced Notice of Proposed Rulemaking with regards to web accessibility standards, but the proposal was withdrawn in 2017 because it was “evaluating whether promulgating regulations about the accessibility of Web information and services is necessary and appropriate.”
In 2018, members of the Senate and the House of Representatives both sent letters to the DOJ requesting clarification around digital ADA standards. The Attorney General responded that it had first specified that the ADA did indeed apply to websites of places of public accommodation (considered a service) over 20 years ago and that there was no further clarification necessary. In 2019 the same Senate members once again requested clarity, demanding specific, written responses to four digital accessibility compliance questions. The Attorney General never responded.
In contrast, physical aspects of accessibility have been clearly spelled out under the ADA so that businesses can be certain their locations are usable by everyone. This includes bathroom sink heights, handicapped parking space dimensions, wheelchair ramp angles, even door widths, among many other specifications.
Are Published Guidelines Really Needed?
According to the Assistant Attorney General for the Office of Legislative Affairs of the Department of Justice, leaving accessibility up to the discretion of organizations allows them to decide what makes their individual websites most accessible. Every website is different, with unique coding and features. Instead of forcing every component to comply in exactly the same way, companies are free to make their websites accessible in whatever manner they see fit; as long as everyone can actually access the information, the website is considered compliant.
In the past, companies who have faced lawsuits over inaccessible websites have been mandated in settlement agreements to fix their websites by making them compliant with Web Content Accessibility Guidelines (WCAG) 2.0 or higher. WCAG is a set of guiding principles written by a consortium of global accessibility leaders, which organizations can reference to ensure their websites are accessible. They are accepted as the accessibility standards by a number of countries worldwide, including the European Union and Australia.
Instead of being framed as a checklist or a set of specific rules, WCAG is outlined as a set of principles: all the features of a website must be Perceivable, Operable, Understandable and Robust. As long as the website and its features meet those principles as end goals, the method by which they meet those goals is at the discretion of the business. The writers of WCAG believe that there is no one way to be accessible, which allows for creativity in how websites are made to be compliant with their guidelines.
The Recipe for Accessibility is as Customizable as Pizza
It’s understandable that Domino’s and other companies want clear, black-and-white guidelines to follow to ensure their websites are compliant and accessible by everyone. While the Department of Justice has maintained that websites are services of places of public accommodation and must be accessible, it has chosen not to provide strict guidelines in hopes of allowing companies more compliance flexibility. Based on past court rulings, WCAG has filled the void left by an absence of published guidelines, giving businesses a set of goals by which they can evaluate the accessibility of their digital resources. WCAG provides a solid accessibility destination while allowing a flexible journey. Robles v. Domino’s Pizza is a landmark case that underlines the need for accessibility.
To learn more about WCAG and accessibility, visit the Equidox Accessibility Services page.