Today Jeff Byer (@globaljeff) talks with Rachelle Golden about the Supreme Court’s decision to not hear Domino’s petition on whether its website is accessible to the disabled, and what it means for website accessibility litigation moving forward.

About Rachelle Golden

Rachelle handles labor and employment law and litigation. She defends employers before state, federal, and administrative agencies and provides counsel regarding all aspects of human resource issues and compliance to help clients avoid penalties and litigation.

• Hatmaker Law Group
• Rachelle T. Golden LinkedIn

Robles v. Dominos

Bloomberg Law Article by Alexis Kramer
CNBC Article by Tucker Higgins
Mashable Article by Siobhan Neela-Stock

Transcript

Jeff Byer   00:07    Welcome to to digital rage, the podcast about all things internet and the people that make it great. My name is Jeff Byer. Today I had a good discussion with Rachelle Golden choosing an attorney at ha maker law group and she specializes in accessibility and equal access for people with disabilities. She’s, , got firsthand information about the,  

Jeff Byer    00:33    , domino Roblis vs Domino’s case, which, , two weeks as you, two weeks ago as you listen to this was, , the Supreme court denied an appeal to, , they, okay. So what happened is we explained the case in the interview and how the case came about and where the case stands today. But, , what happened recently, which triggered me contacting Rochelle is the U S Supreme court’s decision to not hear Domino’s petition on whether its website is accessible to the disabled. So a very interesting discussion and, , it was awesome to get the details and understand the impact and how this is, this case has the, the opportunity to define website access moving forward. We also discussed that a worst case scenario is that Domino’s settles the case and we don’t get any resolution in the courts to decide what is an acceptable level of accessibility for websites.  

Jeff Byer    01:41    One of the main takeaways that we got from our conversation, or I get from my conversations with Rachelle, is that if you have offline access, , ADA compliance, accessibility, , guidelines to follow, then that should also be duplicated on your website. So if you sell Rochelle’s example is that if you sell gift cards within your store, then you should be able to buy gift cards on your online store. And if anybody with disabilities has special access that they, they have to buy those gift cards in the store, that same access needs to be provided online. , she also said that in this wikag 2.0 AA and you know, basically WCAG 2.1 moving forward is not going to cover everybody. , disabilities have such wide ranging, , you know, symptoms and how people use assistive technologies to, , get information with their disabilities that it’s never gonna cover everybody.  

Jeff Byer    02:58    And it’s not gonna be possible that every single individual is going to have equal access and a digital property. All we’re looking for is what is going to avoid litigation and complaints in the courts. You know, keep this, keep this not illegal issue and give us standards that we need to meet. And , and so that’s what this court case could possibly do. But for now it’s back to the lower courts and it’s at a standstill. So that’s all I got for now. I’m going on vacation. That’s why I’m posting this short episode early. But this is a very important episode and lots of very quality content in here. You can reach me. I am on Twitter at global. Jeff please, if you have the opportunity and the time please rate and review us on any of your pod catchers. It really helps and I’d love to hear any feedback that you have about the show.  

Jeff Byer    03:57    And we are , there was a request online the to go into more static website hosting and and a static website rendering. We are going to get into that in the future. , right now I am working on a WordPress plugin that’s going to be able to give you the fastest possible load times using WordPress as a backend. , and we’re cause all of my tests using the API are taking way too long to render. So we’re moving forward with the static version. So I am going to give you my recipe for static versions most likely in the next episode. So stay tuned. Thank you for listening. And here is Rochelle golden  

Jeff Byer   04:52    All right. Today we have for shell golden for shell is an attorney, a court with hatmaker law group. , Rachelle, will you briefly just explain, , you what you do and what your specialty is?  

Rachelle Golden    05:05    Yeah, sure. So, , I’m an ADA defense attorney. I represent businesses all grow up the state and state and federal courts and, , I am a proactive consultant with various businesses as well to make sure that they become compliant with the, not only construction-related access laws, but as well as the website guidelines that are produced by the worldwide web consorti. , and so I do, like I said, defense, litigation and then proactive consultant as well as employment litigation as well for various businesses.  

Jeff Byer    05:39    Excellent. So, , the topic that we’re going to just discuss today, which I sent you, was the, , Supreme court’s decision to not hear Domino’s petition on, , the <inaudible> case. So a little bit of background. , what, how did this all start?  

Rachelle Golden    05:58    So I’m mr O bliss is a blind individual and or a sight impaired individual and he sued dominoes because he said that he was unable to access the online services to order a pizza. And at the time, , there was no banner on the website, so there was no, you know, if you’re having difficulty call us or call our 24 hour hotline at such and such nber, , that, that wasn’t in existence. And so he sued dominoes for at website accessibility and said that because there was no, , coding on the back end that met the out worldwide web consorti guidelines, which is the, , website content accessibility guidelines, WCA G, , he said that because it wasn’t coded that way, that it was a barrier to accessibility and a violation under the Americans with disabilities act. And so that’s how it started. , last year. Correct.  

Rachelle Golden    07:02    , I believe it was in 2017. Okay. I believe it was in June. I think the, I think the complaint was filed in 2017 and so that originally the district court, which was the first court to hear it, the first federal court to hear it, , dismiss the case because the, , because dominoes then after the complaint was filed, put up this banner that said, call us 24 hours for assistance. And the court said, that’s sufficient. You’ve effectively remediated the issue because there’s a 24 hour, one, 800 hotline that people could call an accident, access the same services, , for ordering pizza if you have a site in permits. Well of course Mr. Robles didn’t like that decision. And so he appealed it to the ninth circuit court of appeal and the ninth circuit court of appeals said, , not only did you not comply with a website content accessibility guidelines, , that banner didn’t exist at the time.  

Rachelle Golden    08:02    And so there was a right case for, , for the case to continue. And ultimately the ninth circuit court of appeals said, , setting aside the ban or issue or you know, we’re not going to really focus on that. We’re going to focus on whether this website needs to be coated with the would gag, the website content accessibility guidelines 2.0 AA or higher in order for it to be, , provide effective access. And the ninth circuit said yes, in order for there to be the remedy for the injunctive remedy for website accessibility is to have, , the website coated to comply with those guidelines. , and it needs to comply in order for there to be equivalent access for persons with disabilities. But the catch was, it said in order for  

Speaker 4    08:56    a website to need to be in compliance with those webs, with those website guidelines, the website must have a nexus. There must be a direct correlation between the product and services that are offered on the website to the brick and mortar of the business. And since Domino’s has brick and mortar locations that somebody could walk into and go order pizza, and they also have one site prevalence, they need to ensure that they are coded properly to meet those guidelines.  

Jeff Byer    09:27    Yeah, and I remember the first time that you talk to you brought that up is that it’s got a, the accessibility online has to match the accessibility offline. That was one of the key takeaways I took away from that. That’s right. , so, , so now Supreme court, , based on those guidelines said that they say can continue. , so, so the, , the petition, what was the petition about?  

Speaker 4    09:57    So, , Domino’s then said, we don’t really like that response from the court. So they did a petition for Ori up to the United States Supreme court and asked them to hear whether, , the, the WCG guidelines are the appropriate guidelines for relief to have a, an injunctive remedy. And so what the court, the ninth circuit said is because the wikag guidelines are not codified under the code of federal regulations because there’s no specific statute or lot implementing those guidelines. That’s not the standard for accessibility, but it is certainly a way to remediate accessibility barriers. So they got around it and that’s how they phrased it, , to make sure that they weren’t creating some sort of standard that wasn’t codified in the law anywhere. And the Supreme court said, yep, we’re not going to touch that. You know, we were, doesn’t seem to be that there’s a split in the circuits, , about these decisions. Most circuits now say that there must be a nexus to the brick and mortar that, you know, if your coated into, to be compliant with the WIC ad guidelines, that that’s effective relief for injunctive relief action. And so we’re gonna leave it alone so they didn’t hear it.  

Jeff Byer    11:16    Quick little break here because our phones got disconnected. Hi Rochelle.  

Speaker 4    11:22    Hi. I think I lost ya. No,  

Jeff Byer    11:24    I could hear you perfectly. I heard everything you said. , you just couldn’t hear me for some reason. Oh, okay. Sorry about that. No, no problem. , you know, it’s technology. What can you do? Okay, so, , so back to the appeal. And so, , so now, , wikag is, is not codified in any way, which means that the Supreme court can’t rule, , in favor of that being a being a guideline because it’s not actually a law.  

Speaker 4    12:02    So how I see this playing out is that if you’ll recall last time we spoke, the house of representatives have asked the department of justice to make the standard. Just codify it. If you’re going to hold people to being in compliance with the guidelines as the effective remedy, just say so formally to go, at least everybody’s on the same page. And unfortunately they said, no, we’re not gonna do that. , we’re gonna leave it up to the business owner to really determine how they want to provide access on their digital platforms. But this is kind of what we recommend. Okay. So that’s what the department of justice the is. And so the Supreme court didn’t say, , yes, wikag is the guideline. , they didn’t, you know, they didn’t, they didn’t make that ruling and neither did the ninth circuit court of appeal. The United secret court of appeal just said, you have to provide access, digital access per person with persons with visual impairments. And in order to do that, you know, the wicked guidelines are the universally accepted standards. So that seems like a good, a good measure for relief. And the Supreme court left it alone and said, yeah, we, we essentially agree with that. , and so it’s not, wikag is not the law, it’s just a measure in which accessibility can be, , implemented if you use those particular guidelines as your, as your website coding.  

Jeff Byer    13:40    Okay. So, so, , this all goes back to what we, what we had talked about originally is that if you’re, if your offline experience has a level of accessibility than your online experience, , must have the same level of accessibility. , your, your example in our last episode was that, , if you can apply for a job, , at, at a location and you can’t do it on the website, that’s a mismatch of, , of access that would, that would, , , allow somebody to file a complaint.  

Speaker 4    14:19    Right. If you could, if I can go into, you know, ABC restaurant and buy a gift card than I should and they have a website where they sell gift cards, I need to be able to buy that same gift card online as I would inside the brick and mortar.  

Jeff Byer    14:35    Okay. And so with, with all that said, does this move the needle in either way as far as, , online accessibility going forward?  

Speaker 4    14:48    Yeah, basically. , there’s, there’s going to be an, in my just professional opinion, , and kind of the consensus in the community, the legal community is that, , if you’re a business and you have a brick and mortar and you offer interactive services on your website, , you better get ready because it basically gave the green light for plaintiffs to bring these lawsuits, , at nause. There’s really no way to get around the well, it, there’s no, no, it’s, it’s not there. I guess there could be an argent to get around the nexus argent, but, but that’s not going to be something that you’re going to be able to get out of at the first pleading stage. It’s going to be something that you’re going to have to litigate on. So it’s gonna be costly. So this is even, , of, of more significance for businesses to look at their websites, see what they can do to make them as, as, as accessible as possible.  

Speaker 4    15:48    , if it’s out of your reach, you know, if it’s going to cost you 10 grand to do an audit and to, to remediate, then you know, maybe you need to hire one of those 24 hour, , phone service companies that can take a call over the phone and leave a message for what have you, even if it’s after hours. , because if you provide 24 hour access to buy gift cards online, you still need to provide 24 access to buy gift cards over the telephone essentially. , and some in some, , visually impaired advocates would say that’s not sufficient. It’s still different. So, but that hasn’t been decided as of yet. No court has, , that I’m aware of. No court has taken up that issue as to whether, specifically whether having a 24 hour telephone nber is actually an equivalent to having 24 hour access online. They’ve, from, from everything that I’ve read, , through New York, , Florida, California, Arizona, all the courts have kind of punted that issue. They haven’t gotten into the nitty gritty of that. So that certainly still an argent that can be made on the advocacy side.  

Jeff Byer    16:56    Okay. And so, , so I’m, I’m going through, , I, I, I a P certification right now. Okay. And great. And, , it’s, you know, this brings up a ton of points. , obviously, you know, comparing online offline experience across the board, , using accessibility like, , surfaces like accessibility three 60 to do a full and complete audit. , cause there is really no, no, , audit made automated way to do it. So, so is this robust case, is there still, , more action to be taken? , in, in regards to what like is, is, is, has, has there been a full trial, has there been, , word given, anything  

Speaker 4    17:50    like that? No, this case is just incomplete. It’s just in the initial pleading phase. So no discovery has been taken. No depositions have been taken that the motion to dismiss was the first pleading that Domino’s filed in the original case. And it was granted because they had already put up that 24, seven telephonic banner on their website. And so the court, so that was enough and then it went up to the ninth circuit and then it went up, you know, to appeal to the United States. Supreme court got denied. So now it’s been kicked back to the district court to hear the remainder of the case. And so at this point in time, I’m not aware of whether the case is settled. I’m not aware, you know, I would imagine that it’s still in litigation. I haven’t seen any, any dismissals as of yet. So it’s still left to be seen how the case is going to resolve because it’s now back down to the district court level.  

Speaker 4    18:43    So Domino’s deciding to settle with that, would you see that as , as a disappointment because we won’t actually get a ruling? Yes, I would be, I would be really bmed out if they decided to just settle the case without actually going into the nitty gritty of, okay, so let’s, now we do have this banner. Is it, is that, could you, could you access the same goods and services as you would if you were using the website or going into the brick and mortar? I think that that’s a question that should be litigated and I think because everybody, not everybody, but, , the consensus in the disabled community is that communication barriers vary. They’re so different from person to person based on whether their cognitive, visual or hearing, , that accessibility for communication barriers is really tailored to that individual. It’s not like a wheelchair where if you have a ramp at a certain slope, yeah, you’re going to, you’re going to capture the vast majority of the audience.  

Speaker 4    19:49    You know, or if you have a restroom that’s 60 and turning radius, most wheelchairs are going to be able to do a three 60 turn. You know, it’s a pretty standard, , communication barriers or not that way. Communication disabilities are not that way. There are so nuanced. And so I think it would be a disservice, , to this issue to not litigate that into really take it through all the way to, you know, motion for smary judgment or to trial to really see what the issues are and what the, what the results are from those issues that pop up throughout trial. So that way we have some guidance. You know, we really, we really, those of us in the community who are really trying to, , help our clients be proactive and to really make sure that they’re doing things the right way so that they are providing access.  

Speaker 4    20:35    And so they’re also protecting their bottom line. You know, we’re kinda shooting in the dark here of like, okay, well we need to comply with what GAD guidelines, but what does that really mean? Does that mean every single technical thing throughout the need to be adhered to? Or are there certain things that are easier to do that can kind of capture the biggest amount of, of persons who need those types of, , you know, that sort of technical compliance, that would be a great starting point for those businesses who maybe can’t do a complete robust, full change of their website. You know, how does this really play out? So I would really like it. See it litigated.  

Jeff Byer    21:13    Yeah. Cause this, this, so basically this has the potential to be the case that defines, defines a future of, , online accessibility. That’s right. Okay. And , so nothing has really happened since, since this, , this, , , this was, , sorry I’m completely lost. So since the petition has been denied, there has been no activity. No. Okay. And so the next, the next phase is that, , either, you know, what would be the logical next step cause Domino’s is basically saying, okay, , you know, we do have the complaint and it is it up to the plaintiff to, to continue.  

Speaker 4    22:00    Yeah, absolutely. Yeah. Until there’s a settlement or a dismissal or until there’s another motion that’s filed, maybe a motion for smary judgment after discovery has taken place and discovery meaning written questions between the two sides and depositions where you know they actually get the plaintiff in the room and start asking Mr. Robles questions about his, his experience with the website and what those barriers if any. There really were. And you know, just because it doesn’t comply doesn’t necessarily mean there was a barrier that he accessed. So and that’s what we see a lot with the construction related access to the same that okay. Yeah. Just because it didn’t technically comply with the California building code doesn’t mean that there was an actual barrier there that you person, you plaintiff actually experienced. So while it may be technically not compliant, there still has to be, he still has to prove Mr. Robles has to prove that there was some sort of barrier to access to him that made the website more difficult or unable for him to use it in the way that other people who were cited could use it.  

Jeff Byer    23:01    So barrier barriers is interesting language because if something was purposely blocking his access to make a phone call,  

Speaker 4    23:13    no, it would be, it would be, let’s say that he, , he could have used the website as it was without calling a telephone nber, but maybe he had to, maybe he cited to a certain degree. Cause just because you have the visual impairment doesn’t mean you’re wholly blind. There are a lot of people that can use magnifiers on the screen that will blow up, you know, the font so they can read what’s on the screen. So based on what his site limitations are, whether he’s wholly blind or whether he just has a visual, I mean, you know, it says that he’s blind in the pleading papers, but there’s been no discovery on what, to my knowledge, to what extent he’s actually visually impaired. And that’s what I mean by it really is going to depend upon his particular disability and how he uses websites and what he needs in order to access the website, , to, you know, order a pizza and his experience might not necessarily be the same as somebody else’s.  

Jeff Byer    24:14    Right. And like you were explaining, there’s unique circstances for every type of disability and providing access isn’t, isn’t universal. That’s right. That’s right. Okay. So barrier doesn’t mean that something goes purposely keeping them from, from, , performing the task. It was that there just wasn’t a way in this, in the way that they were trying to gain access. There just wasn’t a way to do it with their specific disability  

Speaker 4    24:44    and it doesn’t. And, and, and that’s the other thing that’s so, , frustrating for four defendants is a barrier doesn’t mean wholly prohibited from a barrier, just means extra difficulty or, , not as easily usable. Okay. Okay. So, so if there was a barrier, it doesn’t mean that he couldn’t order a pizza at all. Maybe it was just that he had to squint harder in order to see his magnifier to access the screen. That could be considered a difficulty. So, so, you see what I mean? It’s so, it’s so individualized and that’s what even even, you know, website, , remediation companies will tell you is that even if you are wicked compliant, that doesn’t mean that you’re accessible to everybody because you’ve just, you know, you can’t, you can’t capture everybody based on one set of guidelines.  

Jeff Byer    25:40    So with, with this case specifically moving forward, , is, is it possible that in the, in a a suit or, , with, , a next complaint, the based on the wood wood wick act 2.0 AA a B, the assed standard or it’s still not, not, ,  

Speaker 4    26:06    no WCAG 2.0 AA would be the most commonly accepted, , in forced standard from the courts across the country. So if you’re, if you’re at an AA level, , and let’s say you haven’t gone to the, the, the 2.1 level, , most courts, I’ve not seen any court in, , enforce anything different or use any, any other standard to, to provide injunctive relief. Okay.  

Jeff Byer    26:36    And so, , exceeding that standard going into 2.1 or anything like that would show an extra effort so that it minimize any, any future litigation because you’ve done as much as what the agree beyond what the agreeable standard is, even though it’s not law and it’s, it’s not, it’s just something that’s been used as a benchmark in previous cases.  

Speaker 4    27:03    That’s right. Yeah. And you know, for the 2.1 standard, and I, and I will do this with my client signs now, even though it’s not, you know, it’s kinda the, the, if, if they’re gonna do it and you’ve got a really strong mobile app presence and that’s how you’re getting most of your traffic, which, , I would, I would guess most, most companies are just do the 2.1 standard. I mean, you’re already spending the money and if and if, and then 2.1 is, is more compatible with mobile applications. So why not just do it anyway? I mean, why go to the 2.0 AA and then, Oh wait, now we need to go to the 2.1 because our, our app isn’t connecting properly and things like that. Don’t waste your money. Just go all in. I mean go big or go home at this point you’re already neck deep, you know, you might as well just go the extra, the extra mile and really just say I’m 2.1 thank you for visiting our mobile application. If you can’t access it, there’s nothing more that I can possibly do for you. And I’m sorry, I’m happy to answer any questions you have over the telephone. Give us a call.  

Jeff Byer    28:01    Yeah, I completely understand that. And so offering as much as possible is, is a where most people should be since they’re going through the process anyway. But if you’re, if you’re trying to, if you’re trying to retrofit something, , you know, and there should be no real difference between just retrofitting for a 2.08 and 2.1 that’s right. Yeah. Yeah. All right, well, thank you very much for that clarity. , it’s, , it’s always helpful to understand what this means moving forward and, and you know, how, how this keeps coming up and it keeps being brought up into the spotlight. And so it’s something that, you know, with, with me going through this certification, I want to keep up on current events. Sure. Is there a way that this case can be tracked publicly?  

Speaker 4    28:58    , there’s several different blogs out there, so like if you just Google, , like <inaudible> versus domino blog, there’s several different law firms out there that are, are tracking that daily and th they’ll give you, they’ll feed you the updates that, you know, the relevant updates. So that’s, I would say the most simple way, , because it’s back down to the district court level. , really the only way you can track it is to go on pacer and set up an account and, and keep, you know, check it every, every week or every two weeks. , and, and track it that way. Cause pacer is, you can, you can get access to any federal Kate in the, in a federal case, in the country through pacer dot. I think it’s pacer.gov and you sign up for an account and costs money, , to, to do that. When you download, like let’s say you download the docket every two weeks, it’s going to charge you a dollar to do that every two weeks or what have you. , but that’s another way that you can do it. But I recommend just kind of Googling, Googling blogs and there’s other law firms that are already doing that on, on the public’s behalf.  

Jeff Byer    30:10    Okay. Yeah. So unless something is, is unless there’s a public filing, , there’s no real way to track it. So I’ll, I’ll link to a blog, a blog that I find, , has valuable information in the show notes. So, yeah. All right. Excellent. , so where can people find you? , what do you have to, , tell the audience?  

Speaker 4    30:34    , people can find me at Hatmaker, H I T M a K E R Hatmaker law.com. Again, my name is Rochelle golden. You can find me there. You can email me directly from the website, , which is Rochelle, , at Hatmaker law.com. Or you can simply just give me a call. I’m happy to answer any calls that I receive and I will answer any email that I receive. I’m not going to guarantee you within 24 hours, but, but I will certainly get back to you. My telephone number is (559) 374-0077.  

Jeff Byer    31:08    All right. Excellent. Thank you very much for your time today and we were, we really appreciate it and , looking forward to speaking with you again soon. Absolutely. I’m, I’m available anytime for ya. All right, thanks for <inaudible>. Alrighty.  

Speaker 1    31:22    Bye. Bye.

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