The shift toward using an app on your phone to place an order, instead of using your phone to call a place, has made life easier for millions of people. Unfortunately, that shift has the opposite effect on blind and visually impaired consumers, for whom thousands of websites and mobile apps are unusable. Domino’s Pizza maintains one such site, and it’s asking the Supreme Court to let the site stay that way.

Domino’s made a legal filing called a writ of certiorari to the US Supreme Court last week—basically, an argument for why the nation’s highest court should take its case. In the petition (PDF), Domino’s asks the court to determine whether the Americans with Disabilities Act (ADA) requires a retailer’s website or app to “satisfy discrete accessibility requirements with respect to individuals with disabilities.”

“Websites and mobile apps do not become public accommodations simply by virtue of providing access to the goods and services of a brick-and-mortar enterprise,” the pizza chain argues. The ADA “does not demand full accessibility for each and every means of accessing the goods or services a public accommodation provides to the public.”

As courts have split on the digital accessibility issue several times in the past two decades, Domino’s said, the time is “ripe” for Supreme Court intervention.

The background

A blind consumer in California tried at least twice to order a pizza from Domino’s using its website and app, but the customer was unable to complete the transaction because Domino’s services were not designed to be accessible to the blind. In 2016, he filed suit against the pizza delivery chain, alleging a violation of the ADA.

The district court dismissed his case, so he appealed. The Ninth Circuit Court of Appeals heard the case last year and ruled in the customer’s favor in January of this year.

In that ruling (PDF), the appellate court determined that “the ADA applied to Domino’s website and app because the Act mandates that places of public accommodation, like Domino’s, provide auxiliary aids and services to make visual materials available to individuals who are blind.”

In its appeal to the Supreme Court, Domino’s claims the Ninth Circuit ruling is flat-out “wrong” and needs to be addressed before businesses spend time and money adapting their digital storefronts to meet “unclear and shifting standards.”

The legal question

Parties on both sides of this and several previous lawsuits have pointed out that the law itself is unclear. The ADA doesn’t have any specific provisions dealing with Web or mobile storefronts because it became law in the long-ago era of 1990, before such services existed.

Title III of the Act, however, is devoted to “public accommodations and services operated by private entities,” including retailers and restaurants. Most brick-and-mortar venues, with some specific exceptions, are required to make reasonable accommodations for customers with disabilities, such as keeping aisles a certain minimum width, installing ramps or elevators, adding braille or raised print to certain signs, or allowing service animals.

ADA compliance and enforcement is far from perfect in physical spaces, but at least the law exists. But courts are indeed badly split over whether digital spaces—rapidly becoming a dominant sector of the US economy—also fall under Title III protections.

The Justice Department has changed its position on the question several times in the intervening decades, but it never actually issued a final rule or a unified guidance either way, leaving the matter to be handled in court.

Accessibility technology firm UsableNet said in a recent report that more than 2,200 lawsuits related to Web accessibility issues were filed nationwide in 2018, with a combined 49 percent of those suits filed against retail and food service businesses.

These suits are a “no-win scenario” for companies on the receiving end, Domino’s said. “And it is also a no-win scenario for individuals with disabilities, because defendants faced with these suits overwhelmingly enter into piecemeal monetary settlements with individual plaintiffs or eliminate their online offerings instead of trying to keep up with moving-target compliance standards” that evolve as technology changes.

In its petition, Domino’s cites cases decided by the First, Second, and Seventh Circuits all determining that businesses that only operate in the digital sphere are subject to Title III liability—and cases decided by the Third, Sixth, and Ninth Circuits determining that they are not.

This wave of lawsuits means time is of the essence, Domino’s wrote in its filing. “This case is an ideal vehicle for the Court to address whether and how Title III applies to websites, and that issue need not percolate any further,” Domino’s said. “Courts have thoroughly aired the competing arguments over whether Title III applies to the internet, and have chosen their sides.”

https://arstechnica.com/?p=1545319