Integral but not Accessible: Supreme Court gives the green light for ADA in Technology Case

Ninety-eight percent of all Americans have a cell phone of some kind. There is very little variation in cell phone ownership among demographics such as sex, age, race, education, or income. Eighty-one percent of cellphone owners have a smartphone. A fundamental feature of smartphones are the ability to access the web and download applications or (“apps”). About 77% of all smartphone users download apps. The rise in apps is in part due to the convenience they allow: one of the most convenient genres of apps are food delivery apps. From Uber eats to Postmates, smartphone users have a barrage of menu options at their fingertips. Restaurants have even joined in and created their own apps whereby customers can have food delivered to their door steps. Many restaurants also have websites, which similarly allow customers to order and schedule food delivery from any internet enabled device. Digital food apps and websites are a gigantic industry and predicted to rise by 20% worldwide to a $365 billion industry by 2030.

What could possibly be more integral to U.S. society than food at your fingertips?

It is important to note, however, that integral does not mean accessible and many people with disabilities find it difficult or impossible to use apps or websites that have become so fundamental to daily life.

In 1990, Congress found that many people with disabilities were precluded from fully participating in all aspects of society “because of prejudice, antiquated attitudes, or the failure to remove societal and institutional barriers. In an effort to combat this finding, Congress enacted the Americans with Disabilities Act (“ADA”) with the explicit purpose of providing “a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.”

While the ADA served as a significant stride in federal protection and enforcement of standards set on behalf of individuals with disabilities, it is clear that plenty of barriers remain present for people with disabilities. Something as trivial as ordering food from online can be impossible for people with various disabilities. This was the case for Guillermo Robles. Robles is blind and cannot use the Domino’s Pizza website even with screen-reading software. Robles sued Dominos and argued that the ADA “requires businesses with physical locations to make their websites and other online platforms accessible to those with disabilities.” Dominos, on the other hand, argued that the ADA does not apply to websites as websites were not envisioned when the ADA was passed.

The case was originally dismissed in 2017, but the 9th Circuit reversed the dismissal and ruled the case should go to trial. Dominos petitioned the Supreme Court to intervene but on Monday October 7, the highest court in the U.S. denied cert and Dominos will have to go to court.

Domino’s most substantial argument is that the Department of Justice has not yet adopted internet accessibility regulations that dictate to businesses what is required of them to comply with the ADA. A privately developed standard called WCAG 2.0 has provided guidelines for what an accessible website should include. WCAG 2.0 is described by experts as the standard that affords “maximum accessibility but is still attainable.” However, the standard has not been adopted by the government or the Department of Justice. Businesses have further delayed implementing WCAG 2.0 out of concern that the Department of Justice will implement different standards down the road.

There have been a number of pleas for guidance. The Department of Justice planned to propose web accessibility regulations in 2010 but seven years later, withdrew those plans without promulgating any guidelines. Members of both the House of Representatives and the Senate sent letters to the Attorney General asking for the uncertainty to be addressed yet no final rules of internet accessibility have been stipulated.

A definitive ruling should come from the Robles v. Dominos case. Courts have been urged by a number of groups to interpret the ADA to apply to technology as well as goods and services delivered through technology (i.e. digital food delivery). The Robles/Dominos dispute is just one of a vast string of suits filed in federal courts over the last year concerning ADA accessible technology. In 2018, approximately 2,250 lawsuits (a nearly three times increase from the previous year) were filed in federal court claiming that website inaccessibility was a violation of the ADA. The lack of clear and explicit guidelines concerning website accessibility has created confusion and has inundated the courts. In the past year, there have been a number of split decisions that have only added to the uncertainty surrounding this topic.

A Domino’s representative stated, “Even if a business or nonprofit tries to comply, nothing stops the next litigant from suing again by claiming that these attempts failed to satisfy elusive accessibility standards.” Currently, business do not have clear guidelines on what is required of them to accommodate disabilities on their websites and until the courts answer this question, litigation will continue. The courts should take this opportunity with Robles v. Dominos to shed some light on an increasingly tumultuous topic.

Madeline A. Labovitz

October 14, 2019