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The Most Accessible Pizza Pie

What did that Domino’s Pizza LLC v Robles accessibility case actually say?��By NOT A LAWYER!

gmauer@gmail.com

@togakangaroo

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Again. I am

but I can read ok

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Domino’s Pizza LLC

v

Robles

So what are the basics here?

Domino’s lost a case in court having to do with their website accessibility.

This was of course poorly reported and even worse understood. In fact, you’d think this decision was the end of the world.

Honestly, I can sympathize. Being sued is scary. Accessibility is ambiguous and not a binary compliant or not thing. What do they even expect from us!?

And then the economic argument comes in. How many small businesses might go out of business because they cannot afford the extra cost? The degree to which you are concerned with that might depend on your political inclinations, but I think everyone would agree that we want to decrease the amount of red tape that businesses trying to bootstrap themselves deal with to a minimum.

That’s right, this is all just going to be a libertarian rant. :troll:

And then there’s the other side of things. Hooray hooray this is a major win for accessibility, everything will be different now.

Neither of those is exactly true, but first let’s discuss what actually happened

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Timeline

Domino’s Pizza LLC v Robles

September 2016 - Guillermo Robles files Robles v. Domino’s Pizza LLC in the Central District of California
March 2017 - case is dismissed without prejudice by the district
October 2018 - appeal of the dismissal is argued in front of the 9th Circuit court of appeals
January 2019 - dismissal is overruled by the 9th Circuit
March 2019 - appeal of the 9th Circuit decision is filed with the Supreme Court
October 2019 - Supreme Court declines to review the decision

In 2016 Guillermo Robles filed suit against Domino’s Pizza over their website being in violation of rights granted to him by Title III of the American with Disabilities Act

If you’re unaware of how dismissal works, a judge might be asked to dismiss a case for a variety of reasons meaning it does not go to trial. Mostly this means that the court agrees that some point of law clearly renders the entire argument the plaintiff is making moot (and that the plaintiff has not addressed this).

If you’re unaware how appeals work, there is a hierarchy of federal courts. If you lose a decision you can petition an upper court to review the decision and they are free to take it up or to turn down your appeal.

So note what happened, there wasn’t really a ruling over Dominos’ website.

The district court dismissed the case - they did not hear it and rule, they refused to hear it.
The 9th circuit overruled the dismissal - they said that yes, you do have to hear the case
The Supreme Court refused to review the 9th circuit decision in effect agreeing that yes, the case needs to be argued

Note that there was no actual decision on anything other that a specific lawsuit can continue and be argued. Keep that in mind here

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Domino’s Pizza LLC

v

Robles

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How the 9th Circuit Broke it Down

Does the ADA Title III apply to Domino’s Website and Mobile App?
Does applying Title III here violate Domino’s right to due process?
Should the court invoke the Primary Jurisdiction Doctrine here?

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The ADA and

Title III

The American with Disabilities Act

Intended “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.”

Title III

About what constitutes a “public accomodation” and what their responsibilities to disabled customers are.

The ADA passed in 1990 with overwhelming bipartisan support in both houses

The ADA “affords similar protections against discrimination to Americans with disabilities as the Civil Rights Act of 1964, which made discrimination based on race, religion, sex, national origin, and other characteristics illegal”
the ADA also requires covered employers to provide reasonable accommodations to employees with disabilities
And Title III imposes accessibility obligations on public accommodations.

The titles are basically chapters of the ADA which have to do with different things. Now no one here was employed (Title I) nor is this about government discrimination (Title II) or had to do with telecoms (Title IV) or a whistleblower (Title V) so we’re really talking about title III

What is a public accommodation? It gets a bit complex but think restaurants, hotels, stores, schools, hospitals; but not private clubs or churches and you’ll be in the right ballpark. We as armchair lawyers don’t like ambiguity but realistically, I have not seen anyone seriously arguing that they don’t know whether they are a public accomodation or not. That seems mostly settled.

Title III says a public accommodation must

“take those steps that may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the public accommodation can demonstrate that taking those steps would fundamentally alter the nature of the goods, services, facilities, privileges, advantages, or accommodations being offered or would result in an undue burden”

It is worth mentioning that this is not the opinion of a court or language written by a bureaucrat in a regulatory body. This is the actual law. In general, courts have tried to be fair about interpreting things, but yes, it is now and has been legal since the ADA went into effect in 1992 to sue over violations

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Does the ADA Title III apply to a website?

Domino’s argued:

That the ADA does not apply to websites. See the language of the ADA does seem to be talking about places with physical locations and there were a smattering of rulings for example dismissing a suit against Netflix.

The issue is that the law talks about “services of a place” not “services in a place”. This seems like minutiae but really it seems to be a fairly common talking point brought up in several rulings that I’ve read, not some asshole one-off interpretation. What happens is the court usually applies what it calls the “Nexus test” as to whether there is

“some connection between the good or service complained of and an actual physical place.”

Therefore, Netflix, where there is no connection between what the services offered in their physical headquarters which are not even open to the public, this does not apply to, but - and this is the 9th circuit speaking - for Dominos which promotes the website as a mainstream way of finding locations for pick up or delivery, does. There is clearly a connection and one with oodles of precedent case law.

And frankly, watching the actual arguments, the Lawyer for Domino’s seemed fairly confused whether he was even arguing whether the ADA applies or not. The judge points out that they seemed to have ceded that it applies when arguing before the district court (which also agreed it applies).

Next let’s tackle what the court said about whether Dominos’ right to due process was violated here

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The Lawsuit is a Violation of Dominos’ Due Process

Due process is the idea that - among other things - the court and judges should try to structure things so as to comply with basic fairness.

In this case, Dominos’ due process would be violated if they couldn’t reasonably be expected to know that they were supposed to comply with this law.

As far as fairness goes, this is a pretty straightforward idea. Yes, ignorance is no excuse when you’re going 50 in a 35, but there are after all hundreds of thousands of pages of laws and regulations. Courts do take this into account and try to give businesses the benefit of a doubt.

Unfortunately for Domino’s the court was having none of that. It points out that since 1996, the DOJ has repeatedly stated that yes, Title III does apply to websites. The opinion in fact cites multiple cases and instances in which they would have had plenty of notice.

And either way - as they pointed out, this wasn’t even the argument that Dominos was making about due process to begin with

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Due Process, Guidance, and WCAG 2

Instead Dominos’ due process argument is instead twofold.

First that the Department of Justice had not issued guidelines on what makes a site accessible and that this therefore creates a situation where Domino’s couldn’t possibly follow a law which has not yet been written.

Again, this is an argument we can all be sympathetic to. You want us to follow a standard but won’t tell us the standard? What kind of nonsense is that?

However, the court points out that that is the way a great many aspects of the law already work. Again it cites cases where it was ruled previously that lack of specific regulation does not violate due process.

If you think about it, it can’t really make sense any other way. It would be quite absurd if the fact that an executive agency hadn’t issued guidance you felt specific enough for your situation meant that you were free to ignore a law passed by congress. That’s simply not how the law works.

In fact, an agency might purposefully avoid issuing guidelines in order to provide businesses the flexibility to follow the law in whatever way makes sense for their situation. Sure, there’s no guidance from the DOJ, but there is plenty of guidance overall - the WCAG (Web Content Accessibility Guidelines) for example is published by the w3c and is widely regarded as quite good. In fact they are often cited in due diligence evaluating risk of lawsuit in digital properties when evaluate potential corporate purchases.

Secondly Domino’s reasonably argues that w3c is an open but private organization and that WCAG has no standing in the law. And this is true, but the court shuts that down as well.

Look - they’re effectively saying - WCAG is just brought up as one particularly popular way that people try to meet their obligations under the ADA. It’s fine if you didn’t use WCAG as your accessibility guidelines, but just tell us what you did use, then we can evaluate if it complies with the law or not.

So to summarize, Domino’s isn’t making the argument that it’s unfair to consider their web design not sufficient it arguing that for lack of an officially sanctions standard for the DOJ, no standard can apply at all and the law should be moot. This, the court states, is just not how any of this works.

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Primary Jurisdiction Doctrine

Does it apply?

Primary Jurisdiction Doctrine “allows courts to stay proceedings or to dismiss a complaint without prejudice pending the resolution of an issue within the special competence of an administrative agency”

Essentially - “Look, this is a better fit for an agency with experts to weigh in on, not the court, just hold off on dealing with this until they do and by then it might be a moot point

Domino’s argues that this should apply here

Here again, this makes surface level sense but the court says “hold on, that’s not how we do things”. There’s nothing that says we have to apply this doctrine, just that we might, and either way there is no prospect of the DOJ issuing guidance on this any time soon. There had been a notice that they planned to issue guidance starting in 2010 but they cancelled it in late 2017. The DOJ is aware of the issue but has no plans to do anything about it. In the meantime, the ADA grants petitioners a right that would be going unfulfilled. Again, invoking the doctrine here would effectively be granting Domino’s the ability to ignore the law for an unspecified amount of time. There is a set of litmus tests on when courts apply primary jurisdiction, and this situation does not seem to meet them on a variety of fronts.

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Conclusion

This is the reasoning that the court used to remand the case down to the lower court and honestly...it’s pretty solid.

In this light the Supreme Court didn’t take the case on not because they didn’t want to weigh in on accessibility but because they considered the argument solid and had nothing to add.

So what happens now?

Note, that Domino’s did not lose the lawsuit. Domino’s never argued the lawsuit. Instead they argued that the suit should be dismissed which the court eventually disagreed on. So now they have to argue the actual suit in the district court or settle. Personally, from the little I’ve heard of the facts of the matter, it doesn’t sound like Robles has too much of a case but again...not a lawyer.

If I were more conspiratorially minded I might suggest that the reason they went through all this hullabaloo to begin with is because they know there’s emails where the concern of accessibility is raised and a manager dismisses it, and they want to avoid going to discovery.

Or it could just be because a ton of organizations signed onto this suit to help them in an attempt to defang the possibility of any accessibility suits on the web. It could even be seen as a laudable way of nudging the DOJ to work on those guidelines again.

What it is not is a ruling that all sites have to be accessible.
It is not a ruling that all sites for a physical business have to be WCAG compliant
It does not open the floodgates and in fact, except for the 22 months that the district court’s ruling was in effect, it doesn’t change anything at all. We simply are back to where we are before. In fact - as the lawyer for Domino’s pointed out during arguments - thousands of lawsuits already exist. They can still be dismissed, they simply are not dismissed automatically because the ADA doesn’t apply.
So yes, you can be sued, yes, it is not crystal clear what you need to do to avoid that, but no, none of this is new

So what to do as a developer or a business owner?

Well, we don’t concretely know.

What we can say is that if your site provides some aspect of the services you provide at a physical open-to-the-public location you should have accessibility in mind. How specifically you might choose to fulfil your ADA obligations is left up to you but it has to be a legitimate effort to accommodate people with disabilities. You might have to argue this in court, but courts have been fairly lenient here.

When in doubt, WCAG is a good standard to keep in mind. Even an imperfect but real attempt at implementation and an attitude of actually caring about this stuff should be reasonable protection.

http://www.briggs.com/insights-publications-ALERT-Recent-Developments-Regarding-Website-Accessibility-Demonstrate-Continued-Uncertainty.html

There has since been resolution, sort of:�https://www.bclplaw.com/images/content/2/5/v2/251042/Domino%E2%80%99s-MSJ-Order.pdf