I ’m boycotting Domino’s Pizza. I know boycotts are supposed to involve enduring a noble sacrifice so as to demonstrate one’s firm and unwavering resolve. But not ordering from Domino’s is easy for me to do, because I wasn’t planning on placing any orders there in the foreseeable future. For me, boycotting Domino’s is like making a solemn vow that, until further notice, I will not eat a banana split smothered in barbeque sauce.
I guess it’s more accurate to say that I’m rededicating myself to boycotting Domino’s, because its pizza is so putrid. It’s almost as though it whipped up a recipe specifically intended to antagonize me. Well, the joke’s on Domino’s because I live in Chicago, where the streets are paved with pizza, so it can’t goad me! I have a cornucopia of pizza options!
But Domino’s corporate gall runs much deeper than that. The company has pulled out all the stops to avoid having to make its lousy pizza available to people with disabilities.
In 2016, a man named Guillermo Robles filed a federal lawsuit against Domino’s in the U.S. District Court for the Central District of California.
Robles is blind. He claimed in the suit that he tried several times to order a pizza online or by using the Domino’s mobile app like sighted people do, but could not because the Domino’s website lacked the accessibility features necessary for him to navigate it. His suit charged that Domino’s was violating Title III of the Americans with Disabilities Act, which ensures disabled folks access to places of “public accommodation.”
In the lower courts, Domino’s legal team dug in and argued that the case should be dismissed. They said that “public accommodation” applied only to Domino’s brick-and-mortar locations and thus it had no legal obligation to make the website accessible.
But this case wasn’t only about access to Domino’s pizzas. Of course, the ADA does not specifically state that websites count as public accommodations because this wasn’t an issue at the time it was signed in 1990. It’s like arguing that the Constitution doesn’t say anything about banning assault rifles so therefore it can’t be done.
When those who make and pass a law aren’t clairvoyant enough to anticipate and account for every possible future scenario, we must resort to applying common sense and consider the spirit of the law. The spirit of the ADA is to open up all of the important aspects of life to disabled folks. How can anyone argue that equal access to the Internet isn’t critical and becoming more so with each passing day? If you’re left out, you’re left behind.
Suppose Domino’s absurd hair-splitting interpretation of the ADA was applied to a public accommodation of considerably more consequence than a pizza chain, such as a bank? The bank would have to make its branch locations accessible but not its online banking portal. How ridiculous.
Access to the Internet and all it has to offer is so important that the number of ADA lawsuits related to web accessibility has skyrocketed recently. Research by the accessible technology firm UsableNet identified 2,285 such federal lawsuits filed in 2018, up from 814 cases identified in 2017.
The Robles case is about equal opportunity. If a disabled person wants to order Domino’s pizzas with the same ease as everyone else, as baffling and distasteful as I may find that decision to be, he or she should have that right.
Rather than take the necessary steps to ensure that right, Domino’s set out to distort and pervert the spirit of that beautiful creation known as the ADA in the same way it has distorted and perverted that beautiful creation known as pizza.
But in 2017, U.S. District Court Judge S. James Otero ruled that Domino’s website is indeed a place of public accommodation. Domino’s lawyers argued that even if website access is covered by the ADA, the company still should not be required to actually make its website accessible, because the U.S. Department of Justice has not issued web accessibility guidelines.
This dispute about web access has been going on for a long time. As far back as July 2010, the twentieth anniversary of the signing of the ADA, the DOJ announced its intent to develop and release ADA web-access rules. But in December 2017, less than a year after the squatter currently occupying the White House moved in, the DOJ scuttled that process, saying it was reconsidering whether this action was “necessary and appropriate.”
Since that time, nothing more has happened with regard to implementing these rules. In 2018, six Republican Senators sent a letter to then-Attorney General Jeff Sessions urging him to resume the rule-making process. But the Department of Justice still hasn’t budged.
In the meantime, Judge Otero bought the argument being peddled by Domino’s that the absence of rules made compliance impossible, and dismissed the case on those grounds.
Robles’s attorneys appealed to the U.S. Court of Appeals for the Ninth Circuit. Several disability rights organizations, including the National Federation of the Blind, the American Council of the Blind, the American Foundation for the Blind, and the National Disability Rights Network, submitted an amicus brief in support of Robles.
Now that the legal strategy of being obstinate has been exhausted, will Domino’s finally try to make its website and mobile app accessible?
“In many ways, individuals with disabilities rely on web content more so than their nondisabled peers,” the brief stated. “The twenty-four-hour-a-day availability of information and transactions on covered entity websites and mobile apps provides a level of independence and convenience that cannot be replicated through any other means.”
In January, a three-judge panel issued a unanimous decision overruling Otero’s dismissal and allowing the case to move forward. Waiting for the DOJ to act would “needlessly delay the resolution of Robles’s claims,” the panel declared. The “DOJ’s withdrawal means that the potential for undue delay is not just likely, but inevitable.”
Despite this clear rebuke from the courts, Domino’s persisted. It appealed to the U.S. Supreme Court to overturn the appellate court. Its petition, filed in June, said the Appeals Court decision would create a “tsunami” of ADA website litigation. It said the ruling “creates a nonsensical rule” that “explodes the reach of Title III into the online world.” It said, “Title III defines public accommodations as actual physical places. That is the antithesis of a website or mobile app, which is ‘located in no particular geographical location.’ ”
The conservative U.S. Chamber of Commerce, of course, took the side of Domino’s. It filed an amicus brief, along with the National Federation of Independent Business, urging the Supreme Court to hear the case. The brief said the Appeals Court decision was “based on a profoundly flawed interpretation of the ADA.”
Domino’s, for its part, urged the U.S. Supreme Court to intervene so the issue of Internet access “need not percolate any further.” But on October 7, the Supreme Court refused to hear the case, without comment.
So now what? Now that the legal strategy of being obstinate has been exhausted, will Domino’s finally set about the business of trying to make its website and mobile app accessible?
In its Supreme Court petition, Domino’s boasted that it is “one of America’s most popular restaurants, which has grown into ‘the largest pizza company in the world.’ ” The company had more than $13.5 billion in global retail sales in 2018. In an earnings statement, the company said, “Emphasis on technology innovation helped Domino’s achieve more than half of all global retail sales in 2018 from digital channels, primarily online ordering and mobile applications.”
Yet somehow, Domino’s seems to think that applying some of that innovative spirit toward ensuring that those digital channels are adequately accessible under the ADA poses some huge financial threat.
But I have a cost-cutting suggestion for Domino’s. If it wants to save a lot of dough, it can stop making dough. It can just pour the sauce directly into the cardboard pizza box, spread it around the bottom, and then sprinkle on the cheese and toppings. Then the person who ordered the pizza can just eat the bottom of the box. Trust me, nobody will notice the difference.