Supreme Court building in Washington D.C.Domino’s Pizza has filed a Petition for a Writ of Certiorari with the United States Supreme  Court challenging the Ninth Circuit’s recent ruling in favor of Guillermo Robles.* The Court’s decision on whether to grant certiorari will have a profound impact on the possible “tsunami”** of website accessibility lawsuits, but we don’t have to wait for that decision to find the Petition itself interesting.

What I find most intriguing is Domino’s argument that the Ninth Circuit has adopted a new, third standard for application of the ADA to the internet. Along with other commentators I have always seen a two way split in the Circuits. Some (the First, Second and Seventh) simply hold that all websites are public accommodations subject to the ADA. It is a simple approach that leaves no room for doubt about a website’s accessibility obligation. Others (the Third, Sixth, Eleventh and Ninth Circuits) find that a website is covered by the ADA only if it has some nexus to a physical place of business. The exact nature of that nexus is a question being slowly answered as different situations are presented to the courts, but details aside, the nexus requirement seemed a common thread in decisions from these Circuits.

Domino’s argues in its Petition that the Ninth Circuit has adopted something that considers nexus only in the most formal sense. As Domino’s reads the Ninth Circuit’s decision, once there is any connection between a website or mobile app and a physical store then the website or mobile app must be accessible regardless of the nature of that connection. Other courts, including earlier Ninth Circuit decisions, look for some more substantive onnection, holding for example that a website must be accessible only to the extent it provides some service connected to the physical store; it is the service that must be accessible rather than the website.º Domino’s argues that the Ninth Circuit’s holding requires that the website itself be accessible regardless of whether the services it offers are available in other forms. In other words, every means of access to the goods and services must be usable by those with disabilities, even if other equally convenient means are available. We know this isn’t true for physical access because the relevant standards confirm what the Tenth Circuit found in Colorado Cross Disability Coal. v. Abercrombie & Fitch Co., 2014 WL 4290589 (10th Cir. 2014): the point is the ability to get to the goods and services, not the way a disabled person gets to them.

Whether the Ninth Circuit has indeed adopted this extreme view is not perfectly clear, but the argument highlights two important problems that existing web access cases barely touch on. The first is simply deciding when a website is itself a service of a brick and mortar store and when it is merely a means of access to the goods and services of a brick and mortar store. Suppose a website offers nothing more than information about the hours of operation and locations of various stores. This is a service offered by the stores to help customers find those stores but like an ad in the yellow pages or on a billboard it only points the way to the store; it doesn’t help you get there. In theory services should be accessible, but this has not been required of services that merely provide information. Billboards and yellow pages advertisements are not required to be accessible to the blind and radio advertisements are not required to be accessible to the deaf. Television advertising isn’t even covered by the ADA.

Now suppose the website offers on-line ordering of prescriptions to be picked up at the store (the situation in the Winn-Dixie case). The service/goods in question is having your prescription ready to pick up when you arrive at the store. This service can be accessed through the website, via an app, by phone, or for the most primitive, by sending a fax. If the website didn’t exist the service would still be available, it would just be accessed by other means. Domino’s argument is simply that their pizza ordering website and apps are just a means to get access to pizza, and if other means are available and equally convenient the inaccessibility of these particular means is irrelevant.

Although Domino’s does not make this analogy I think the situation can be compared to the difference between stairs and a ramp. The ramp and stairs are two different ways to get to the physical facility and the goods and services it offers. The fact that one is not usable by individuals in a wheelchair doesn’t mean there has been illegal discrimination – the focus is on the end of the trip, not how you get there as long as the difference isn’t too great. Domino’s would say its online ordering platform is just like stairs – as long as a ramp is available the inaccessibility of the stairs is irrelevant. Unfortunately the lines are blurred when the means of access – on-line ordering – is tangled up with information about what is available, pricing and the progress of your order once placed. Providing that information is a service of the local store, not just a means to get to the pizza, and services should be equally accessible to the extent it is possible.

But just what is possible, and how do you compare different means of access to goods or services? Domino’s has always argued that if its website didn’t work for someone with a disability it was equally easy to place a call to toll free number and order that way. That may not be true. Relative convenience for those without and without disabilities is hard to determine, especially for those who are not disabled. For me, having no disability, ordering pizza using the internet is much easier than calling a phone number – there’s no getting put on hold or talking to someone who clearly doesn’t know how to take an order online. More important, all my options are there on the screen in front of me and I can make my choices at my leisure and change them before I check out. You can’t do that on the phone. On the other hand, a person using a screen reader that has to plow through all the options involved in online ordering with nothing but spoken text prompts might find it far easier to make a call. Or they might find a website designed specifically with screen readers in mind to be easier to use.† Equality of access is impossible, and the best approximation depends very much on the particular disability and particular service in question.

Making choices that involve compromise is, I think Domino’s would say, the province of the legislature or  regulators. The standards for physical accessibility were certainly based on compromises between cost and accessibility; in many cases it is just harder for a disabled person to get into a store because the cost of making it equally easy would be too high. Websites are no different except that the compromises are going to be hashed out one non-binding district court decision at a time. This would be o.k. if we though some national consensus might emerge, but technology changes so quickly that last year’s well reasoned decision on what “accessible” means will be absurd next year. The private industry standard that Winn-Dixie was ordered to comply with has already been replaced and the appeals aren’t even over.

Domino’s adopted its “third way” argument because the easiest way to get the Supreme Court to pay attention to a case is argue for a split in the Circuits, and a three way split is better than a two way split. It is also strategically helpful to put the Circuit Court decision on the side of the split most likely to be wrong. Without saying so Domino’s has associated the Ninth Circuit with the First, Second and Seventh Circuits by saying the Ninth Circuit is creating a stand alone accessibility obligation for websites and mobile apps. Treating the Ninth Circuit’s decision as simply one in a spectrum of nexus decisions would suggest the Supreme Court needs to let the case law develop further. It will be interesting to see if the Supreme Court bites, keeping in mind that the “tsunami” of litigation that Domino’s complains about is a tiny fraction in terms of numbers of cases and dollars spent when compared to other types of lawsuits, including ordinary debt collection and personal injury cases.

What does all this theory mean for businesses concerned about accessibility and litigation? Not much. There will be likely be no decision that matters for a year or more and it is unlikely the plaintiff’s firms will slow down their rate of filing new lawsuits. I can however offer some practical advice in approaching website accessibility. Plaintiffs’ law firms continue to use software tools to identify websites to sue based on WCAG 2.0 AA compliance. There is little evidence the plaintiffs themselves are choosing whom to sue based on their own desire for goods and services; it is far more likely legal assistants or other law firm staff are simply scanning one website after another using these software tools. The place to start with accessibility is the problems that show up when a software tool is used. Deeper problems may need to be fixed in time, but if you look good on a simple scan that may be enough to avoid litigation while we wait to see what the Supreme Court says about the ultimate question of website accessibility.‡

* See our blog, “ADA and the Internet – 9th Circuit overrules Robles v Dominos

** The word chosen by Domino’s in its brief.

º Our blog, “Victory and Confusion in Internet Litigation” and any of our blogs with the phrase Winn-Dixie to find out more about these ases.

† One of the most peculiar positions taken by disability advociates is that in every situation those with disabilities must be presented with the same platform for access to goods and services as those without disabilities. Thus, DOT recently found that operating an essentially separate website that caters to the needs of blinds users violates DOT’s web accessibility regulations for airlines. Ramps and stairs again provide a helpful analogy. If the stairs are the facility in question then for the sake of accessibility the wheelchair user is given a different facility. No one argues that this creates some kind of segregation as those without disabilities have a facility – stairs – not available to wheel chair users. The point is not the use of the ramp, but getting to whatever is at the top of the ramp and stairs. When a website provides access to goods or services the website itself is just a staircase. Designing a separate website for usability by the disabled is just like building a ramp. It doesn’t segregate the disabled because everyone ends up with access to the same goods and services. Unless the website itself is the destination, of course.

‡ This same rule applies to physical businesses concerned with “drive-by” lawsuits. If the accessible parking looks good the plaintiffs will usually drive on without stopping because it takes too much time to get out of the car and see whether there are ADA violations inside a store they never intended to visit anyway. Fix the parking first to avoid litigation and fix the interior later because it is the right thing to do.