Technology is accelerating rapidly in both efficiency and frequency, but many would argue the legal system is not equipped to keep pace. This has created an increasing number of complex legal issues. One of the most recent to hit headlines is Domino’s accessibility lawsuit, which has opened up some very interesting discussions on the future of technology and accessibility.
This all began back in 2016 when a blind man named Guillermo Robles tried to order a pizza on Domino’s mobile app with his screen reader (an assistive technology that translates what appears on a digital screen into audio). When his screen reader wasn’t able to do so on both the app and the website, he decided to sue them. His attorneys argued that the Americans with Disabilities Act (ADA) requires businesses with physical locations to make their websites and other online platforms accessible to those with disabilities.
The court agreed with this argument, stating that the “alleged inaccessibility of Domino’s website and app impedes access to the goods and services of its physical pizza franchises—which are places of public accommodation.”
Domino’s recently took this decision to the Supreme Court and asked them to review the court’s decision. They argued that the ADA can’t apply to digital platforms that weren’t even envisioned when the ADA was created in 1990. They claimed that the legal system has no clear rules on technological accessibility and wanted the Supreme Court to make an executive decision.
However, the Supreme Court refused to review the court’s decision, which means Domino’s will have to fight the accessibility claims in court.
The reaction to this decision has been welcomed by advocacy groups who fight for the rights of people with disabilities.
“The Supreme Court’s decision is welcome news. Using technology is a vital part of full participation in the community, and this development is another important step toward ensuring accessibility in the digital age,” stated advocacy group, The Arc. “The ADA remains a critical tool to enforce the rights of people with disabilities to fully participate in all aspects of society.”
However, others are more critical of the Supreme Court’s decision, and of the ADA in general.
Many believe that the ADA, created 30 years ago, was meant to ensure businesses provide physical accessibility and was never designed to deal with modern digital accessibility, therefore it provides no real legal clarification. The National Retail Federation has even asked Congress to create a permanent standard, arguing that conflicting court rulings have obscured expectations of ADA compliance.
Brent Stewart, Senior Research Director at Gartner, told CIO Dive: “The ideal scenario would have been that the Supreme Court took it up. If the Court decided in favor of Guillermo Robles, then we [would have] this very clear nationwide precedent that would be essentially indisputable, would reduce the number of lawsuits significantly, and give businesses really clear guidelines on what they need to do to be in compliance with legal precedent.”
If businesses are happy to follow the ADA’s ruling on physical accessibility, why is there such an argument around technological accessibility?
Tony Coehlo, the now-retired Democrat who introduced the ADA to the House in 1989, told ARS Technica: “I put in the ADA obviously before the Internet came on board. But what we did is, we provided the language that basically said, ‘accommodation for the infrastructure,’ in effect. It’s just how people communicate, it’s how people get into commerce, it’s how people relate to each other, and so forth. It’s a critical part of our infrastructure! In my view, without reservation, the ADA was not meant to be something that was in place at the time alone. It basically sets the standard for going forward. As a result, the Internet is part of our national infrastructure, and it’s asked to comply with the law of the land. I have no reservations on that.”
However, considering there were more than 2,200 website accessibility-related lawsuits filed in federal courts last year, which was almost three times as many as the previous year, the legal system is less clear on the scope of the ADA. In fact, a mid-year report from UsableNet found that there are around one ADA web-related lawsuits being filed every working hour.
It all comes down to the lack of a preventative regulatory system built into the ADA, argues ARS Technica. Everything is dealt with on a case-by-case basis with each complaint and lawsuit. For example, Target settled with the National Federation of the Blind in 2008, promising to make its website accessible to blind users and pay $6 million in damages. In 2012, Netflix settled with the National Association of the Deaf, promising to put captions on all of their videos by 2014.
Although advocacy groups like WCAG (Web Content Accessibility Guidelines) do a good job of ensuring web content is accessible, they don’t carry the legal authority of the ADA, which is currently not specific enough on digital accessibility to force businesses to meet high accessibility standards.
The Obama administration did begin the preparation for implementing rules that would cement the requirement for websites of public accommodation to be ADA compliant in 2010, but this was dropped in 2017 by the Department of Justice.
With more large companies pressuring the Supreme Court to make a definitive decision on tech accessibility, and the media taking an increased interest in these lawsuits, change could be on the horizon.
If, hypothetically, a law was passed tomorrow that forced companies to make their digital content accessible, what would happen? The truth is many companies are not prepared or equipped to make the necessary changes required to ensure their content is accessible.
Screen readers and other assistive technologies generally rely on certain markers such as alternative text to be able to convey digital content to their users. In many cases, these markers are not automatically available and need to be coded. It’s not just the functionality of websites that would have to be made accessible, the content hosted on these sites would likely need a similar treatment.
This poses a huge hypothetical challenge for industries that have a lot of content stored in PDF or Word. While both of these file formats can be made fully accessible today, this wasn’t always the case, and it’s likely that a lot of companies haven’t made 100% of their content accessible, if at all.
The PDF, for example, is a destination file format usually created in some other software or program, then exported to PDF. According to Adobe’s accessibility overview, “optimally, document accessibility should begin in the native document format”. Many of these native programs like Adobe Indesign and Microsoft Word do allow you to build accessibility into your documents before you export them as a PDF, but if you don’t have access or have lost the original native file, you might have to make the PDF file itself accessible. This involves a lot more manual work as you have to go through and tag each aspect of the document appropriately, and there are some aspects like foreground and background colors that can only be made accessible in the native document.
For a company with hundreds, if not thousands, of PDF files to backdate, this would be incredibly exhaustive. And considering that you can’t live-edit a PDF that’s already been downloaded, all of those original files that weren’t accessible would still exist out there, you’d just be creating a newer accessible version.
When the ADA will be upgraded or replaced is a matter of speculation, but the need to make digital content accessible is here today. Domino’s might have made an important statement by trying to back the Supreme Court into making an assertive decision, but ultimately they were fighting for the right to not be accessible. If the legal system isn’t ready or willing to make these necessary changes, businesses should be taking the initiative to ensure all of their technology and digital content is accessible to all.
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