U.S. Supreme Court Passes on Domino’s Case: Commenters Misunderstand: Part 2

In my last post, I presented the first part of a lengthier response by Lainey Feingold, an attorney specializing in disability law, to the Supreme Court’s denial of cert to a suit brought by Domino’s arguing that the Americans with Disabilities Act (ADA) should not apply to the internet. This is a continuation of her remarks. Her original post may be found at https://www.lflegal.com/2019/10/dominos-comments/

Should the plaintiff have picked up the phone?

Many commenters shared the sentiment of this tweeter: “this man couldn’t I don’t know, call the store?????????” The Supreme Court did not decide whether Mr. Robles should have called Domino’s instead of trying to use its website. It only decided that it would not look again at the Appeals Court Opinion. And that Opinion was only about whether the case could stay in court.

Now that the case can stay in court, one question will be whether the telephone provides “effective communication” of Domino’s website content. Effective communication has been required by the ADA since the law was passed 29 years ago. The legalistic language is that a company like Domino’s must provide “auxiliary aids and services” to ensure “effective communication.”

In Domino’s statement about the case the company said it was “disappointed” in the Supreme Court’s decision, but “we look forward to presenting our case at the trial court.” If Domino’s chooses to keep fighting and do just that it will be able to argue that the phone is good enough under the Americans with Disabilities Act.

Can a phone line really ever substitute for an accessible website?

As stated above, Domino’s will have the chance to argue that its only ADA obligation in connection with its website is to provide a phone line to take orders and answer questions. Will the company be successful?

If Domino’s chooses to fight, there will be discovery on the question of the phone vs. an accessible website. Both sides of the case will ask each other questions, or maybe ask for documents, about what the plaintiff intended to use the website for and what the phone could provide.

There will be arguments to the court that a phone line is or is not effective communication of website content. Perhaps the plaintiff will point out that the website allows users to do far more than order a pizza. That the site offers detailed information about allergens in various pizza ingredients and an interactive chart to calculate calories. Or that some deals are only available online.

Perhaps the defendant will argue that Mr. Robles only wanted to order a pizza, only eats one kind of pizza, has no allergies. Perhaps there will be evidence on how much time it takes to order on the phone vs. the website, or the hours the phone line is staffed. Perhaps experts will testify about the value of independence; the burden of having to talk to someone because you are disabled when people without disabilities can go online.

Maybe there will be back and forth on the very nature of the web as compared to a telephone call. The ability to answer questions about a company or a product that you never knew you had until you visited a website and were able to access its content.

If the parties do not settle the case, all of these factors and many more will go into a judicial determination of whether calling a phone line is equivalent to independent website access. Think of the hundreds of thousands of dollars that will be spent in such an endeavor when true accessibility is easily in reach.

In my view, a phone line can never substitute for an accessible website. But the law gives Domino’s the chance to make the argument.

The Supreme Court Order does not require Domino’s to hire blind delivery drivers

One commenter fumed that “next they’ll sue Domino’s for not hiring blind delivery drivers.” Primarily this is a crack at lawsuits generally, but it also misses something important about the ADA.

The ADA does not require a company to do something that would be a “direct threat to the health or safety of others.” If a company has a question about the safety of drivers with certain types of vision disabilities, this provision would come into play.

The joke about blind delivery drivers also reveals unfounded assumptions. Several years ago a federal highway safety agency issued a regulation that allowed otherwise qualified people who were blind in one eye to obtain a license to drive a truck. The agency found that these drivers could safely operate a commercial vehicle.

And to the car-related commenter who wrote “I guess this means he can sue the car companies that don’t make cars for blind people to drive:” No it doesn’t mean that. But in the era of self-driving (autonomous) vehicles let’s not make assumptions about who can drive what. We do know that the ADA will make sure efforts to avoid discrimination do not risk anyone’s safety.

Will the Plaintiff get rich off of the Domino’s lawsuit?

Short answer: No.

After acknowledging that he would “get chastised” for his comment, one reader surmised that the plaintiff in the Domino’s case “saw a quick few half a million dollars and rolled with it.” Another concluded that “Plaintiff is a gold digger.” Doubtful.

Remedies under the Americans with Disabilities Act do not include money for the disabled person bringing the lawsuit. In some states, civil rights laws do allow plaintiffs in disability rights lawsuits about inaccessible websites to be compensated if they win the case under state law.

California, where the Ninth Circuit is based and Mr. Robles lives, is a state that has this type of law. The Supreme Court’s order has nothing to do with it. When damages are awarded in such a case, individuals recover a tiny tiny fraction of the commenter’s idea of half a million dollars.

Is the Domino’s case only about enriching lawyers

Short answer: No.

The many, many anti-lawyer comments following the Domino’s news is summarized by these three words and two exclamation points penned by one commenter: “Lawyers everywhere rejoice!!”

More than fifty years ago the U.S. Congress decided that when someone brings a successful discrimination case, the organization (such as a private company, government agency, or education institution) found to have discriminated should pay the attorneys fees that the discriminated person had to spend to bring the case.

This is called “fee-shifting” because usually in the United States, plaintiffs must pay their own lawyers, either up front, or from what they recover in a lawsuit. In civil rights cases the burden of paying an attorney is “shifted” so the defendant pays.

Fee shifting exists in all types of discrimination cases including race, gender, and disability. Without fee-shifting, there would be very little civil rights enforcement in the United States. Anyone who believes in equity and civil rights should support fee shifting.

And fee-shifting is not just about conflictual lawsuits. It also allows collaborative practices including Structured Negotiation to succeed. In a relationship-building process to resolve legal claims, when people bringing those claims need lawyers, fee shifting ensures they can have them.

So are lawyers rejoicing? Lawyers who understand that without fee-shifting the ADA would not be enforced breathed a collective sigh of relief with the Supreme Court’s order. But not for the reasons suspected by the commentator.

Lawyers and non-lawyers alike celebrated the court’s order because any other outcome could have threatened the Americans with Disabilities Act, the foundational law that supports disability inclusion in the United States. Including digital equality.

Do lawyers file too many web accessibility lawsuits and abuse the system?

Many commenters, like this one, were frustrated by lawyers who sue under the ADA yet do not seem to care about digital accessibility: “Ok, but how about some immediate disciplinary action against lawyers that go around suing multiple businesses under the same law, rather than just look for improvement.”

I’m concerned about certain lawsuits in the digital accessibility legal space too. I wrote about that in my piece titled Ethics in the Digital Accessibility Legal Space: ADA Enforcement Cases or Something Else?

As I wrote in that piece, I believe there are lawyers who “have seized on the Americans with Disabilities Act as a quick money-maker, with no concern for possible backlash or creating bad precedent.” But as I also wrote, we cannot let “bad actors set bad policy.”

Organizations including the United States Chamber of Commerce filed “friend of the court” (amicus) briefs in support of Domino’s arguments to the Supreme Court. These briefs bashed these questionable lawsuits and asked the court to take the case and put a stop to them.

I’m glad the Supreme Court was not swayed by these arguments. Eliminating ADA rights in the digital age for disabled people throughout the United States is not the solution to a few law firms filing web accessibility lawsuits for the wrong reasons.

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