File Photo / Tim Greenway
Greg Dugal, director of government affairs for HospitalityMaine
Updated: November 11, 2019
Focus on Law
ADA standards catch up with ecommerce, and lawsuits are on the rise
Photo / Tim Greenway
Nat Bessey, a partner at Brann & Isaacson, in the Lewiston office.
By Maureen Milliken
A lawsuit against Domino’s Pizza over whether its website and mobile app comply with the Americans with Disabilities Act may be the highest-profile case involving commercial digital compliance, but it’s not alone.
And until federal law catches up with digital technology, there will likely be others, say those on the front lines.
“There have been thousands of lawsuits filed in jurisdictions across the country,” says Nathaniel Bessey, an attorney with Brann & Isaacson in Lewiston. Bessey, who represents online and catalogue retailers, says more such lawsuits are coming and cites a similar suit against grocery chain Winn-Dixie winding its way through Florida courts.
“Frankly, it’s a risk for anyone doing business on the internet,” Bessey says. “You can be a good business, you want to reach customers,” but still fall short.
As lawsuits like the high-profile one against Domino’s Pizza are on the rise, businesses wait for federal standards on what website accessibility means.
In 2018, 2,258 federal lawsuits were filed over commercial internet accessibility, nearly three times the 814 suits filed in 2017, according to UsableNet, a global technology firm that specializes in accessibility issues. The top industries targeted are retail, food service and travel and hospitality.
Most suits use as the foundation the ADA requirement that “no individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.”
When the law was written in 1990, the internet was in its infancy, and the law doesn’t reference digital presence, but also doesn’t specify a business’s bricks-and-mortar presence.
The U.S. Supreme Court said Oct. 7 it would not hear Domino’s appeal of a 9th U.S. Circuit Court of Appeals decision that an ADA noncompliance lawsuit can be brought against the pizza chain, meaning the case will be decided in a U.S. District Court in California.
Lack of clear standards
In the Domino’s suit, customer Guillermo Robles, who is visually impaired, said he couldn’t use Domino’s mobile app to order a pizza because it wasn’t compatible with software that converts web text to audio.
The Ninth Circuit said the website and app “facilitate access to the goods and services of a place of public accommodation — Domino’s physical restaurants,” so the ADA would apply.
Domino’s said in a statement after the Supreme Court announcement that it has taken steps to make its site accessible, but added, “We remain steadfast in our belief in the need for federal standards for everyone to follow in making their websites and mobile apps accessible.”
One reason the number of lawsuits continues to rise is the lack of clear standards, which “leaves lots of room for interpretation and allows even companies that have been proactive to be targeted,” according to UsableNet.
Greg Dugal, director of government affairs for HospitalityMaine, says businesses are not fighting ADA rules. They just want direction.
The nonprofit represents more than 1,000 lodging, restaurant and other hospitality-related businesses in Maine.
“We understand the importance of the ADA,” says Dugal. “Our members understand, and appreciate, disabled guests. They want them to be comfortable and they want their business.”
HospitalityMaine, at its annual seminar earlier this month, had a panel addressing ADA compliance issues to spread the word.
A risk for anyone
Most modern websites can accommodate accessible features that are compatible with e-reader software, including alt text for photos, which describes what’s in a photo. For instance, an image of Gov. Janet Mills giving a speech may have alt text that says “woman stands at lectern before large crowd.”
Accessibility for e-reader software also includes things like using fonts and colors that the software can pick up easily.
It’s not just about visual accessibility, but also having captions with videos for the hearing-appeared and other elements for a range of disabilities.
Issues can arise even for those who are conscientious about their web design, Bessey says. A site may have dozens of photos that have alt text, for instance, but one that doesn’t. Or it may have a shade of text that isn’t clear enough against the background. A business may have an accessible website, but then add video, with no closed captions for those with hearing impairment.
Guidelines exist, but aren’t law
There are already some standards around the issue. The Web Accessibility Initiative, or W3C, which is made up of business leaders, web designers and advocates for those with disabilities, formed two decades ago to draw up guidelines, now known as WCAG 2.0. The standards have been updated over the years.
Attorneys representing the plaintiff in the Domino’s case suggested that the pizza chain should comply with those guidelines.
But the guidelines aren’t part of the ADA and don’t have the weight of law.
The WCAG guidelines cite disabilities — including visual, auditory, physical, speech, cognitive, language, as well as learning and neurological disabilities. They say compliance also benefits “older individuals with changing abilities due to aging and often improve usability for users in general.”
But the guidelines “are not able to address the needs of people with all types, degrees and combinations of disability,” W3C says.
Legislation introduced in the U.S. House of Representatives this session calls for the U.S attorney general to determine whether WCAG 2.0 standards would provide reasonable accommodation under the ADA. The bill also has the Department of Justice review whether accessibility widgets on websites and phone numbers that allow customers to get more information comply. The bill hasn’t been acted on in the House, and there is no Senate version.
‘Everybody wants to do the right thing’
Online compliance is wide-ranging, and also includes whether there is information about accessibility for customers at the business, Dugal says. Compliance also means the owner is responsible for links to other websites that are embedded in their sites to make room or dinner reservations.
Business owners often aren’t aware of a compliance problem until it’s brought to their attention, frequently in a letter from a lawyer. Immediate compliance, particularly if it’s expensive, can be difficult.
“What needs to be done is that when a problem is identified, let them work to fix it, rather than sue,” Dugal says. “Most [business owners] want to do what’s right.”
Bessey echoes that. “Everybody wants to do the right thing. But any time you’re running a business, it’s about where you make investments, and when. Not everyone is able to change something on a moment’s notice.”
Both he and Dugal say attention to compliance is important to business owners for both legal and customer service reasons. “It’s just good for business,” Bessey says.
But it can be overwhelming for a business owners.
“No one gets a free pass,” Dugal says. “But they should be given time to fix the problem.”
The proposed federal legislation would be more flexible, giving businesses an opportunity to fix issues before legal action can be taken. It also has an educational component for both businesses and customers.
UsableNet says lawsuits are also on the rise because businesses haven’t been proactive enough “in both action and communication of digital accessibility” as people with disabilities increasingly rely on them.
Dugal says, “It’s about realizing, recognizing and doing the appropriate things to fix issues.”
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