Supreme Court should use Domino’s ADA case to clarify law on web accessibility

Multiple free-market and business groups “agree on one thing… With plaintiffs’ lawyers filing thousands of lawsuits a year against businesses with allegedly inaccessible internet operations, it’s time for the U.S. Supreme Court to clarify whether and to what extent the ADA applies to online commerce. The groups all filed amicus briefs [last] Monday, asking the justices to grant a petition for review of a ruling from the 9th U.S. Circuit Court of Appeals that allowed a blind Domino’s Pizza customer to sue over the company’s website.” [Alison Frankel, Reuters; Ilya Shapiro and Sam Spiegelman, Cato; Karen Kidd, Legal NewsLine] The circuits are split, with the First, Second, and Seventh interpreting the ADA to require accessibility for web-based services, while the Third, Sixth and Eleventh say it relates to brick-and-mortar enterprise or is satisfied by the provision of at least one accessible way of obtaining service. The Ninth Circuit came out somewhere in between in its ruling against Domino’s. Frankel:

DOJ comes in for considerable flak in Cato’s amicus brief, which described the executive branch’s contortions over ADA website accessibility. As the Cato brief pointed out, DOJ “nearly parodied its confused positions” when it argued in two different amicus briefs that Netflix’s video-streaming service was a public accommodation that should be fully accessible to deaf customers – but that MIT’s online video streaming service was not. “This split-hair legal distinction can have substantial real-life costs on the ground and in the courthouse,” Cato said.

Regulated businesses have been calling for years for a clarification of the confused judicial state of ADA internet law. [John D. McMickle, WLF] Last year, six Senators and 103 members of the House of Representatives sent letters urging the Department of Justice to issue clarifying guidelines as to whether the ADA covers websites, though it might be pointed out that Congress itself holds the power to draft and send to the President legislation to accomplish exactly such clarification. [Kristina Launey, Seyfarth Shaw]


  • ADA and the internet is an absurd juxtaposition. How can a blind person navigate web pages? How can they view videos (e.g., of lectures or cats). Note that movie theaters are NOT required to have subtitles on their films (which would ruin the experience for most people). Books and magazines are NOT required to have braille within them nor are there special rules for helping the colorblind read a magazine. There are not requirements for radio to somehow be accessible to the deaf.
    The idea behind the ADA was noble: people in a wheelchair should not be stopped by high curbs or steps from getting around. Fine. The internet is a totally different thing. Even brick and mortar suits have gotten out of control. When complying with a law is impossible, it is time to change the law.

    • “How can a blind person navigate web pages?” With a screen reader.

      “How can they view videos (e.g., of lectures or cats)” By listening to the audio (and using described videos where available)

      “Note that movie theaters are NOT required to have subtitles on their films (which would ruin the experience for most people). ” But they do offer captioning devices, captioning apps, Rear Window, etc… and are required to do so by law where it’s not an undue burden.

      These really are solvable problems. Not every problem for not every use-case is, no, and there are a lot of edge cases that are hard to attach definitive rules to, but it’s weird that you’re baffled at the idea that blind people could use the internet when large numbers of people do every day.

      • Forgive my ignorance on the subject, but given that the various Browsers out in the wild (Chrome, Firefox, IE, Edge, Safari, Opera) can’t render the same web page in the same way, I’m wondering how it is that the web page’s authors are by default more responsible than the third party app which purports to render the website usable by someone in need of that assistive device?

        Yes, I’ve seen really incredibly poorly written web pages – those may be easy answers. I’ve seen web pages written 5 or 6 different ways, version shown dependent on the browser of the viewer (a not insignificant expense to write and periodically update) – do they get safe harbor? Do we demand that websites avoid use of certain features which make use easier for sighted persons with good hand eye control, because they don’t work well (if at all) for those whose eyesight or motor control might be significantly impaired, effectively “freezing” that method of using the internet? or take CA’s approach and impose strict liability on the maker of the assistive software the way they do for prosthetics, such that the maker (or perhaps the seller) becomes liable if the software doesn’t work or is not suited to the specific needs of the user?

        I see lots of trade offs and suspect, given what I’ve seen in other technologies with significant third party intermediaries, that the Courts are the absolute worst place to make those policy decisions, and agency “guidance” in mounds of vaguespeak aren’t much better.

        I don’t see any good answers, or any easy answers here. Don’t envy the Supreme Court this one. On the one hand, it may be best that they declare the ADA inapplicable, and leave it up to the market to decide. But that invites the possibility that the ignorant in Congress will make a further mess of things.

      • Could not “reply” so this is for mx. Last year or so a huge archive of academic videos was taken down because the lectures were not ADA compliant. The link mx provides documents harsh penalties for small business websites that are not ADA compliant–yet proving compliance is not so simple.

        The existence of screen readers is great and is an example of letting the market fix a problem rather than draconian penalties.

    • I am here, so obviously the blind can navigate the web. I watch movies on netflix, and love their audio described section. Better check out federal law relating to the national library service since they provide books and magazines in “specialized formats” for the blind and physically handicapped. From what I have “seen” on netflix, they even offer some titles that should be usable by deaf individuals.
      As for “allegedly inaccessible”, there are tools which determine if a web site complies with wcag 2.0 a and aa. Since that is designated by the NGO that also establishes the html standards, they should have some idea what they are talking about? As for that university, don’t they accept federal funds?

  • The Supreme Court’s opinion on this ought to be very brief—it should cite the story of King Canute commanding the waves to stop. In this case, we have a situation of people asserting that there should be no difference between the sighted and the blind. Would that were so—but it is not. And nothing the law does can make it so. Blind people and sighted people aren’t going to have the same experiences ordering a pizza–and it’s not reasonable to expect that to be the case.

  • It’s not even the difference between browsers that’s a problem —just check out your current version of Facebook, or any popular program, on a laptop computer, a desktop computer, an iPad, and a smartphone; see how different the versions are.

  • Why are radio broadcasters allowed to continue to operate? Are they required to provide a non-aural rendering of music for the hearing impaired?