Accessibility, The Future - And Why Dominos Matters

The question of whether a website is a public accomodation under the law, just like a store, could impact who has access to the internet and in what ways in the future. JL

Kate Cox reports in ars technica:

Is a website or an app a "public accommodation" under the law the same way a brick-and-mortar storefront is, therefore making it subject to the same requirements? If inclusive design has low-hanging fruit, it's the right thing to do, and it's cheaper to do it right the first time... why is accessibility still so contentious? The perception many companies have when it comes to accessibility: "It's difficult." "We are primarily focused on the afterwards clean up, because that is where the legal exposure exists."
The US Supreme Court last week formally declined to weigh in on an argument that the Americans with Disabilities Act should not apply to websites and digital storefronts, leaving intact a lower ruling finding that the ADA does, indeed, apply to digital space. Internet and Web users with disabilities, as well as advocates for accessible design, are breathing a sigh of relief.
Accessibility in the digital space has come a great distance in a relatively short time, in many ways opening up the entire digital economy of the 21st century to millions of users. But the fact that one company—Domino's Pizza—could try taking a case for not making its services accessible to the highest court in 2019 makes clear how much work there is left to do to make the online world equitable, both today and in the future.
So although the Domino's case has run out of road, the questions it raises still remain: where does the connected world stand today in terms of accessibility? What does the future look like? Why is the law still unclear on all of this? And what's at stake for any future Domino's followers?

Domino’s v. Robles

The case the Court declined to hear, Domino's v Robles, stemmed from a 2016 lawsuit. Guillermo Robles, a blind California resident who uses screen readers to access the Internet, tried to place an order through Domino's mobile app. Neither the app nor Domino's website proved usable by a screen reader, and Robles eventually sued the company, arguing the site's inaccessibility violated his rights under the Americans with Disabilities Act.
The section of the ADA at question is Title III, which says, in part, that you can't discriminate against an individual 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 operates a place of public accommodation."
The district court where Robles filed his case dismissed his suit, so he appealed. The 9th Circuit Court of Appeals, in San Francisco, heard the case in 2018 and released its finding for Robles in January of this year.The 9th Circuit ruling (PDF) did not address whether or not Domino's app and website were, in fact, compliant with the ADA, kicking that question back to the district court to determine. Rather, the appeals court said only that the app and website should be.
"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," the court wrote. "This nexus between Domino's website and app and physical restaurants—which Domino's does not contest—is critical to our analysis."
The law already considers brick-and-mortar stores, including pizza-delivery joints, to be places of "public accommodation" under the law—basically, any place such as stores, museums, and schools (but not including private clubs or religious facilities) that are meant to, well, accommodate the public without discrimination.
That determination then extends to digital means of accessing the site, the 9th Circuit said:

Domino's website and app facilitate access to the goods and services of a place of public accommodation—Domino's physical restaurants. They are two of the primary (and heavily advertised) means of ordering Domino's products to be picked up at or delivered from Domino's restaurants. We agree with the district court in this case—and the many other district courts that have confronted this issue in similar contexts—that the ADA applies to Domino's website and app, which connect customers to the goods and services of Domino's physical restaurants.

Unsatisfied, Domino's tried to appeal the loss to the only remaining authority: the Supreme Court. In July, the company filed a petition (PDF) to the Court asking it to take the case in order to resolve the question:

[Does] Title III of the ADA require a website or mobile phone application that offers goods or services to the public to satisfy discrete accessibility requirements with respect to individuals with disabilities?

Or, in layman's terms: is a website or an app a "public accommodation" under the law the same way a brick-and-mortar storefront is, therefore making it subject to the same requirements?

The Purpose of the ADA

About 61 million US adults, roughly one in four, live with some kind of disability, according to data from the Centers for Disease Control and Prevention. The point of the ADA is to prevent discrimination against a quarter of the population and to codify the need for reasonable accommodations.
The ADA, like many other millennials, is on the cusp of its 30th birthday. President George H.W. Bush signed it into law in 1990—a time when only 15% of US households even had a computer, let alone access to any kind of Internet connection. Thirty years ago, only a handful of futurists and businesses were predicting the digital revolution that has pretty much completely upended old models of commerce, communication, and connectivity. Today, more than a decade into the smartphone era, we're realizing the 21st century likely has a whole lot more surprise in store.
Retired Rep. Tony Coehlo, a Democrat who represented California's 15th district in Congress from 1979-1991, introduced the ADA to the House in May 1989. He now serves on the board of AudioEye, an accessible design firm. As the author of the bill, Coelho firmly believes it applies to digital space.
"I put in the ADA obviously before the Internet came on board," Coehlo told Ars. "But what we did is, we provided the language that basically said, 'accommodation for the infrastructure,' in effect."
The definition of "infrastructure" has been challenged, and it's evolved, over time. And so, as digital commerce came along in the subsequent decades, the question became: is the digital sphere part of American infrastructure?
"Of course," Coehlo said. "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," he added, "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."

“It’s fundamentally terrifying”

Coelho said he was sure the Domino's case would be winnable, but he admitted, "It is a fight. And it's major from the disability point of view. It's our access to the real world, like everybody else has, and we don't."
Designers and advocates in the field were extremely concerned about the stakes and less confident the case, if the Court took it up, could be easily won. Sina Bahram, an inclusive design expert and president of Prime Access Consulting, spoke with Ars at length about both the case and the field.
Over the summer, the figure of $38,000 was circulating online: that's how much Domino's had reportedly said it would cost to make the required upgrades to the company's app. "As somebody who does this kind of work, that seems correct," Bahram said. "That's not an outlandish number. It's not a too-small number. It's in the ballpark, it's within the realm of reason. And so what's frustrating about that is: I do not know the costs associated with appealing something to [the Supreme Court], but I would put hard money that it is greater than $38,000."
Given the sorts of fees corporate law firms tend to command, Bahram's bet seems extremely plausible.
"And so the frustration that I and a lot of other people in the community I know have is: this is not some company going 'we can't afford to do this,' or 'it's an unreasonable requirement,' or anything like that," Bahram said. Yet he says the Domino's case had potential to "destroy the foundation of Web accessibility for basically 20% of the population."
"It's fundamentally terrifying, because if that is a route to make it essentially invalid, then it could invalidate the Web as a place of public accommodation under the ADA. That's really, really concerning," Bahram added.
Whitney Quesenbery is a user-experience design expert who in 2013 co-founded the Center for Civic Design, which helps make election and voting design more widely accessible. She has also published several books about inclusive design. And she recognizes this seemingly bizarre decision to legislate rather than update.
"Here's what's shocking about Domino's: like Target [in 2008], just fixing the problem costs a great deal less than suing. So they were suing for the right to discriminate," Quesenbery told Ars.Domino's could have found itself in an entirely different position with a less aggressive attorney, said Lainey Feingold, a disability civil rights lawyer and author of Structured Negotiation: A Winning Alternative to Lawsuits.
"I feel pretty confident the [Supreme] court won't take it, because there's really no reason it should," she predicted, accurately, of the Domino's case. "It's terrible that Domino's is fighting like this. And it's terrible even to think that—you know, some of these amicus [briefs] say, 'oh, it could just be a telephone.' Who but lawyers would ever think a telephone was equal to an accessible website?"

Accessibility, assistive technology, and inclusive design

"Accessibility" is a broad bucket. At its most fundamental, the idea is to make more stuff usable by more people. In the physical world, this may mean something like adding the bumpy tiles to the edge of a train platform to help visually impaired travelers or making aisles in a store wide enough to accommodate a wheelchair.
In the digital world, sometimes accessibility means software features such as a colorblind mode, subtitles in a video game, or high-contrast viewing options in an operating system. But when it comes to questions of ADA compliance, you're often talking about some kind of assistive technology.
Accessibility is "a little bit of a misnomer," Bahram said. "'Accessibility' are those things we do to mitigate the consequence of disability, so 'accessibility' is very specific to an audience that uses assistive technology and persons with disabilities using assistive technologies."
In Bahram's definition, "assistive technologies are these devices or software that mediate our interaction between ourselves and the environment." Something commonplace such as a pair of glasses or a hearing aid is an assistive technology in that sense, as is something like a screen reader.
"There's a variety of different technologies that exist for different disabilities," Mark Baker, the chief technical officer at AudioEye, told Ars. One of the most common (and the technology at play in the Domino's case) is a screen reader.
Baker said:

Some computers and devices have these built in, such as anything from Apple. Whether it's an iPhone, a MacBook, or Mac Pro, they all have VoiceOver built into them, which is a screen reader. So from the time you boot your computer up⁠—in fact, from the time you install the operating system⁠—it makes it available to you for it to read the screen and you to use the keyboard to interact with it, or the touchscreen on a mobile device. So that's what most people can wrap their heads around.

Screen readers are just one small slice of assistive technology, Baker added. Users with extreme mobility impairments such as quadriplegia may use something like a sip-puff switch, which allows a computer to be controlled by a single mouth-controlled device. Microsoft's adaptive controller—which can be customized to serve a wide array of user needs—is another popular example of an assistive technology.

Think bigger

Instead of thinking only about "accessibility," advocates and designers tend now to think about the field using the philosophy of "inclusive design." If the Domino's app had been created by a team deploying this mindset, maybe accessibility advocates wouldn't have needed to sweat out a SCOTUS decision this month.
Inclusive design is not interchangeable with accessible design. Rather, it "has accessibility as a side effect," Bahram said. Approaching projects from the start with an inclusive design mentality basically gives them a strong foundation that designers and coders can then use to build out whatever needs to be added to make assistive technologies work. Also, while "accessibility" carries a connotation of being some kind of special, extra accommodation, "inclusive design" is more of a reminder to the makers of systems that if you build it, they will come⁠—as long as you make sure all users can.
Ramps and curb cut-outs don't only help people who use wheelchairs or other mobility aids, for instance. They also aid people who may be pushing strollers or carts full of stuff. Subtitles on video don't only help users who are deaf or hard of hearing; they also help viewers who are simply in a loud café, who don't have headphones handy, or who are watching something in a language they don't speak natively. In short, as Quesenbery described it: "When adaptive technology is there, we use it."One of Quesenbery's recent projects has been working with the city of Los Angeles on an overhaul of the city's election systems, which will be tested in a pilot program this November and then go fully live for California's primary election in March 2020.
Among the elements in the program, Quesenbery said, was a screen that could be adjusted to different heights and angles to "put control in the voter's hands." And while that kind of adjustable feature was conceived so voters in wheelchairs could better access the screens, she said, it turned out to be extraordinarily beneficial for almost everyone who tested it, voters of every height.

“Would you be willing to do that face to face?”

Coding and design can be a very siloed process. Even if you work with a big team or with client partners, the end user may often be more imagined than real and faraway enough to be an abstract idea—especially if that user doesn't match your own mental default image.
"I think sometimes developers lose sight of the actual person—that there's a real person that's sitting there trying to use a product," Santina Croniser, an accessibility consultant based in Chicago, told Ars. "This is even more compounded when you look at accessibility issues."
The numbers game can make accessibility too easy to overlook when push comes to shove—which is often to the detriment of the user.  Accessibility "is not just taking a look at a number of a small subset of users," Croniser said. "That's sometimes a thing that a product owner could get mired in: well, what percentage of people are actually using a screen reader? And, you know, how much does that really matter?"
To the user, she said, it matters enormously:

I have an example. I had a conference that—this kid wanted to watch Harry Potter. But there weren't captions available. And this is a kid, right? You're going to tell a kid that they can't go watch Harry Potter because there's no caption?
Would you be willing to do that face-to-face? Maybe it's a smaller percentage of users, but really, just think about the people behind the screen that would ultimately be using a product. That's something it's very easy to lose sight of.

One way of getting others to internalize inclusive design, she added, is to remind them that disability can strike at any time, even temporarily—something as commonplace as a broken arm, for example. "It's not just building for other people," she said, "it's kind of also being selfish—building for your older self or building for your injured self."

The bottom line

Every single source we spoke to for this story was vocally unanimous on one point: accessibility and inclusive design need to be baked in to projects from the start. Not only because it's the right thing to do, but also because it's frankly just cheaper and easier all around. Calling in a company to help clean up a site or app after it launches, instead of bringing in an expert from the outset, is a bigger challenge that comes with a higher price.
"We are primarily focused on the afterwards clean up, because that is where the legal exposure exists," AudioEye's Baker said. "That's where the sense of urgency lies."
"And early inclusion, as Mark [Baker] says, or even [inclusion] in the design stage, would provide a tremendous advance forward for not only the community, but for the ultimate product that people are trying to sell," Coehlo added.
That said, the AudioEye team and other experts agreed that designers and coders shouldn't let the perfect be the enemy of the good when starting out. Incremental steps still help actual users, and they ultimately build companies a base from which to expand.
"A lot of newer clients are reaching out to us at the beginning of projects, which is absolutely delightful," Bahram said. He added:

We get to save them a ton of money, but also they just get to do it right. They're not excluding people due to ignorance. And even if they don't make all of the, you know, "right decisions," at least they're not doing so in an intentional way.
Which sounds odd, but it's really important. There's an informed decision that goes: "Yeah, we know about this, this, and this—we're choosing to target these things. But this one over here, we can't do right now." But they're doing that intentionally. So they can come up with at least some other way of making sure that's accessible for folks.

Bahram admitted the perception many companies have when it comes to accessibility: "It's difficult." But that doesn't have to be the case if teams actively seek out the available resources and experts that exist today. Bahram notes many others have taken the time to write standards for Web accessibility or to create accessibility software and testing tools.
"Folks think that it's some kind of Pandora's box trying to unpack it, that it's extraordinarily difficult to make something accessible," Croniser added. "It's easier earlier in the process, but there are definitely simple things that you can do, even toward the end of the process, that would make it more accessible. Maybe you're not going to get 100% of the way. But if you're able to knock out the big massive issues, it's really not that cumbersome."
On a technical level, the experts told Ars, the solutions to increase accessibility in a system can often be as simple as not reinventing the wheel.
But tech firms and the companies that hire them are often "more interested in moving fast than moving carefully," Quesenbery said. "Every time some new shiny toy comes along, they all jump on the new toy, and you have to remind them about accessibility. The technology really isn't that hard. If you have something that looks like a button, code it so it acts like a button!"
Permitting keyboard navigation is another big example, several of the designers told Ars. "Making sure you can navigate through with a keyboard is something everybody can test," Croniser said. "Everybody has the ability to tap through any kind of digital product to make sure that you can reach everything with a keyboard. That's really getting to a big portion of accessibility that folks might not even realize is so crucial to the end user."
Ultimately, given the resources available today, accessibility advocates think awareness is more important than ability when it comes to companies designing with accessibility in mind.
"The thing we are most lacking in our industry," said Baker, "is early-on education." He went on:

It should be a requirement for any software developer of any kind, early on, right after typing class—there should be a class that is an introduction to disability, that helps people understand that, yeah, you can really do some crazy things with the Web with styling elements to look like different things and function like different things.
But if you're being creative with the built-in elements—using them correctly, using a button when you want a button, not using a div or a span and styling it up to look like a pretty button is going to save you so much time and effort! There's a lot of things that could be taught early on, that would help people kind of break the cycle and prevent making the easily preventable mistakes that cause the majority of the issues that we have to solve.

The fight

So if inclusive design has low-hanging fruit, it's the right thing to do, and it's cheaper to do it right the first time... why, then, is accessibility still so contentious?
To start, there is no preventative regulatory system built into the ADA. Instead, its primary enforcement mechanism is legal. Essentially, changes get made when a user encounters something that doesn't work for them and complains. Sometimes it's an informal complaint, a company says "Oops," and the issue gets fixed.
Often, however, there is a legal complaint—a lawsuit. Big companies change their ways resulting from losses or settlements in those cases. The go-to examples in the modern era include Target's 2008 settlement with the National Federation of the Blind, in which the company promised to make its website accessible to blind users and also to pay $6 million in damages to members of the class-action suit. Netflix also settled a suit with the National Association for the Deaf in 2012, and it agreed as part of that settlement to put captions on all of the video it serves by 2014.
In 2010, during the Obama administration, the Justice Department began the process of implementing rules that would codify the requirement for websites of public accommodation to be ADA compliant. In 2017, however, the DOJ scrapped that process, all but guaranteeing that lawsuits would be popping up all over for the foreseeable future.
They are now, in fact, popping: ADA Web-related lawsuits are currently being filed at the rate of roughly one per every working hour, a mid-year report from UsableNet (PDF) found.
That said, the process doesn't have to be contentious, Feingold, the lawyer, told Ars. "I haven't had to do a lawsuit on these issues, but for one time in the past 25 years," she said.
Feingold's specialty is securing access for disabled users through structured negotiations. Her work in the field began in the 1990s, when a specialized kind of computer, the ATM, was revolutionizing banking.
Feingold told Ars:

In the mid '90s, blind people came to my colleagues and I and said, "There's not a single ATM we can use in the United States." And instead of doing a lawsuit, we wrote to Bank of America, Citibank, and Wells Fargo and said, "You know, there's a problem here, blind people can't use ATMs." And there were no accessible ATMs at the time in the United States, or actually anywhere in the world.

The big banks were receptive, Feingold recalled. "We just had a great relationship with all three banks. They said, 'Yeah, let's talk about it.'" Those talks were fruitful: talking ATMs just had their 20th anniversary on October 1.
It spiraled from there, she explained. Toward the end of the negotiations with the banks about the talking ATMs, Feingold remembered, her clients said: "Good job getting a talking ATM, but there's this new thing called online banking..."
In the context of a lawsuit, the talks would be "narrowly focused," Feingold explained. "A company could easily say, 'Well, this is about a talking ATM, we can't talk about websites,'" in a courtroom. But the negotiation space was more flexible. "And so that's how we got into websites."

The charlatans

Not all of the current lawsuits are necessarily in good faith, unfortunately, and discussions about inclusive design often become completely derailed by finger-pointing at the accessibility world's equivalent of ambulance-chasers or patent trolls.
That type of attorney is a newer player on the scene, Feingold said. "Starting in 2017, you see a huge spike in the numbers," she explained. "Because a different type of lawyer is operating in the space, in addition to traditional civil rights lawyers."
The spike was indeed sudden: while 2017 saw 814 Web-related ADA lawsuits filed, 2018 saw 2,285 such cases—a 181% increase, according to UsableNet data (PDF). So far, 2019 is on track to surpass last year's number.
That kind of attorney "takes accessibility from a civil rights, inclusion sort of space into something that people are just afraid of, and they just want to get out of a lawsuit to do the minimum to avoid being sued," Feingold said. "That's a recipe for disaster, in my opinion."
Those suits are frustrating, Bahram agreed. "Netflix is now the most accessible media company in the world as a consequence of, basically, that action," he said, referring to the settlement with the NAD. "That's fantastic. On the other hand, you have a slew of these drive-by lawsuits, which are completely just money grabs, right? It's basically a shakedown operation."
Not only are monetarily-motivated suits not effective at increasing access, Bahram added, but they're also contributing to a backlash against Web accessibility cases. But on the other hand, he pointed out, if the sites were just accessible in the first place, the businesses operating them wouldn't be sued.

Ethics

Feingold pointed Ars to an essay on ethics she posted to her website this summer. In it, she explained how to distinguish ethical ADA litigation from unethical, "because it uses civil rights laws (the Americans with Disabilities Act and related state laws) without regard for the very people who fought for that law, organized for that law, and 29 years later still need that law's protection: people with disabilities too often locked out of the digital world."
"It's a very small number of firms," Feingold said, estimating perhaps 10 or 12 firms are engaging in that sort of behavior. "Whereas there's there's a lot of civil rights lawyers, and there's a lot of civil rights lawyers using the law to advance accessibility. I have tried to reach out to lawyers, new lawyers in the space. And it's really important to me that there be another generation of civil rights lawyers, and there are, and there's more disabled lawyers going to law school [means] more civil rights lawyers. But many of these people are not that. They're in it for some other reason."
That said, however, Feingold maintains hope. "The courts are starting to look at these cases more carefully and say, 'You know what? The wrong person filed the suit, I'm going to throw it out in court'."
In one case, she added:

The judge rightly said, I think, "If you're going to live by the copier, you're going to die by the copier." In other words, if you're going to file the same lawsuit against different companies by the same person, you've got to have some facts behind it.
And it's a really good decision, because it recognizes that disabled people can have 500 lawsuits every day if they wanted to pursue that, because there's so much inaccessibility out there. But let's get some real facts to show people are having actual experiences.

The future beyond Domino’s

The Supreme Court punted on Domino's, but again, that doesn't mean the case is over. It means the 9th Circuit ruling holds—and the 9th Circuit ruled that Robles could pursue his claim against the pizza chain in court.
"One of two things can happen: the parties can keep fighting, or the parties can settle," Feingold wrote on her website. "It's not hard to guess what I think should happen."
AudioEye's Baker echoed the sentiment. "With respect to the Domino's case: the big complaint they're making is that the accessibility standards are constantly changing, and so it's hard to keep up with them. And I contend that's not something that is specific to accessibility. The only constant is change, right?"
"I just had one silly thought," Coelho added. "Domino's saying that what is happening is continually changing. I would think that if you look at Domino's, they continually are changing their pizza. They're continually changing... the products that they have. And so to, in effect, bitch about the fact that technology is changing all the time, I find it kind of humorous."
"Why the eff don't we get it? Why are we not teaching accessibility in schools? Why are we not teaching it in Programming 101?" Quesenbery asked rhetorically. "People want to change the world! Why aren't we driving toward this? You want something meaningful? It's this!"