It’s pizza night. You pull out your phone or sit down with the laptop to order your favorite half pepperoni, half mushroom with extra cheese. You choose the saved delivery address, use your saved credit card or Paypal, and type in the promo code that gives you a free dessert, while getting loyalty credit towards your next free pizza. In 30 minutes or less, your hot gooey pizza is at the door, and your evening is complete.
But what if you downloaded the app and every time you tried to order a pizza, all the app provided was “topping” with no description? What if when you tried to enter your credit card number, it just refused to accept the digits? What if you couldn’t sign up for the loyalty program? What if you spent 10 minutes ordering pizza and putting in your details, only to find the “Submit Order” button was nowhere to be found?
These are the types of frustrations that assistive technology users face when they attempt to order from restaurant apps and websites. Many of these sites are inaccessible, or only partially accessible. Which means the convenience of ordering your meal on pizza night is, instead, frustrating or impossible. People with low vision, people who are blind, and all types of people who use assistive technology to access websites and apps, face these frustrations far too often.
Most restaurants are well aware that their physical locations need to accommodate all people, including those with disabilities. If they fail to do so, they risk losing the business of guests with disabilities and their friends and family who are with them. A restaurant that fails to make its dining area accessible can immediately notice when a customer and his or her party turns and leaves because they cannot be accommodated, but they might not notice a visitor to their online platform leaving due to inaccessible menus, directions, hours of operation, dietary restrictions, or other information on their website.
How are restaurants violating web accessibility laws?
Restaurants, like other industries, attract business by telling their stories and featuring information on their websites. Some of that information is listed on the main pages of the websites. That information must be properly tagged so that those using assistive technology can access that information. Just because it “looks” a certain way visually doesn’t mean that it will read the same way digitally to a screen reader. Menus are commonly presented as PDFs, which are often inaccessible to screen readers. Entrees may be photographed so visitors can see what the dishes look like, and if those photos aren’t accompanied by descriptive alternative text, assistive technology users would have no idea what the images depict. If the PDF is just an image of the printed menu or if the pricing isn’t digitally tagged to be read along with the correct entre, that means the menu can’t be read correctly by someone using assistive technology. These issues can drive potential customers away from a restaurant before they even arrive (even if you have tons of handicapped parking spaces!). Besides making the effort to accommodate customers, making both physical and digital spaces accessible to everyone is legally mandated. Restaurants are places of public accommodation and are covered under the Americans with Disabilities Act (ADA). Many courts have already ruled that websites associated with places of public accommodation must also be accessible. This includes the capability to order food online or book reservations online, even if it’s through a third-party site because all of those features connect the online visitor to the services offered by the physical restaurant.
What precedent has been set by previous restaurant lawsuits?
Two of the most high-profile cases involving large-scale chain restaurants involved Hooters and Domino’s Pizza. In the Hooters case, the Florida plaintiff Hayes, who is blind, was unable to access information about the restaurant chain because its website was not compatible with assistive technology such as his screen reader. Trial courts first dismissed the case because Hooters had already been hit with a lawsuit for exactly the same violation less than a year before and was in the process of remediating its website as part of the settlement. The deadline by which their website needed to be remediated to comply with the settlement of the previous case was not yet up, However, appeals courts decided that Hayes’ case was valid because some of the remedies he requested, like monitoring to ensure the website maintains compliance even after the initial remediation, were different from the original ruling. Hayes also prevailed because Hooters had presented no factual evidence that it was actively working towards making its website accessible. This was a significant ruling because it demonstrated that a company could be tried for inaccessibility more than once, even though they were still in the remediation process in response to a previous case. Just because Hooter’s had more time to comply with the rule of the previous case did not make accessibility laws were any less applicable to them.
The case against Domino’s Pizza has also been receiving attention again. Sound familiar? It’s been going on since 2016, when California plaintiff Robles, who is blind, filed a suit against the popular pizza chain because their website and app weren’t compatible with his assistive technology, thwarting his attempts to order a customized pizza online. So why is this case still making headlines nearly four years later? The judge originally ruled in favor of Robles, agreeing that the modern convenience of being able to order things online- whether food, beverages, or other e-commerce goods- should not be limited to those who don’t experience disabilities. Everyone should be able to benefit. However, in 2019, Domino’s disagreed with the judge’s decision and has decided to reopen the case in appeals court, arguing that there were no clear rules in place for businesses to follow to know whether or not they were in compliance with the ADA. Despite the lack of regulations, a number of other cases in the 9th District, which includes California, have already ruled that websites, particularly those with a nexus to a physical place of public accommodation, like Domino’s, must be accessible to everyone.
Web accessibility lawsuits aren’t exclusive to big chain restaurants. Another recent California case that has been making headlines for its precedent-setting ruling was that of Thurston v. Midvale Corporation. California plaintiff Thurston, who is blind, attempted to access the website of the Whisper Restaurant and Lounge (owned by defendant Midvale Corp.), but was unable to do so because the website was not formatted to comply with assistive technology like Thurston’s screen reader. As such, she was unable to access the restaurant’s menu, make reservations, or even determine whether or not she could make reservations online. Midvale Corp. argued that the restaurant’s website did not count as a place of public accommodation and that the information presented on the website was available by contacting Whisper Restaurant and Lounge using the email address or phone number listed on the site. The judge disagreed, because all services offered by a place of public accommodation, which includes a website, must be equally accessible to everyone. Anyone not using assistive technology to access the site would be able to instantly access the menu and reservation features, among other things, at any time of day or night. However, using an email or phone number to contact the restaurant means that those requiring assistive devices would have to wait until the restaurant was open and someone was available to respond to their questions. The two options, the judge ruled, were not equal, and therefore constituted discrimination on the part of the defendant. In addition to violating the ADA, the judge also ruled that Midvale Corp. violated the Unruh Act, a California state law that mandates a $4000 statutory fine for anyone violating the ADA.
What can restaurants do to avoid web accessibility lawsuits?
In many states, there are no clear laws or checklists to determine exactly and explicitly what needs to be done to make a website accessible. As long as it is accessible to the end-user, how it should get there is left to the discretion of the business. However, based on past precedent-setting cases, most courts agree using Web Content Accessibility Guidelines (WCAG) version 2.0 will produce a website and attached digital resources that are accessible to all users. What’s important to note is that making a website accessible should be approached by considering what the end-user will actually be able to use, not by looking at a checklist and making sure a website can tick the boxes. So many restaurants and other companies make the mistake of thinking that free, online accessibility checkers will tell them whether their website is accessible or not. An automated checker can only identify 20%-30% of the inaccessible elements on any given website. While they can identify coding issues associated with inaccessibility, they have one major flaw- they’re not human, and therefore cannot access the website in the same way as a human end-user. An accessibility checklist can’t tell you if the prices on your menu line up with the correct items. A checklist can’t tell you whether the images you post on your website are properly described. Checkers can identify text, but not whether that text makes any sense in the order it’s presented by assistive technology. Starting with an automated checker can point restaurants in the right direction towards web accessibility, but websites and resources should be checked by a real person using a real screen reader (anyone can download a free screen reader!) to ensure it makes sense.
At a time when information is available instantly at any time of day or night, everyone needs to be able to access that information equally. A restaurant’s website can help potential customers or visitors decide whether or not to ever set foot inside the restaurant. No matter how delicious the food or how attentive the service staff, none of that can bring a customer in the door if they can’t find out what’s on the menu or where the restaurant is located on the website. Online frustration can drive potential customers and those dining with them to other restaurants who have taken the time to consider their needs- even virtually. And legally, it’s a huge risk to exclude people who use assistive technology from your digital platform.
For information on avoiding accessibility lawsuits and reaching everyone, visit our Accessibility Services page.