What makes a restaurant's website accessible? That's up for debate

Key Points
  • The Supreme Court denied a petition from Domino's Pizza to hear whether its website must be accessible to people with disabilities.
  • The decision not to hear the case means that other restaurants and retailers could find themselves in court fighting similar allegations.
  • Domino's and other large chains have invested heavily in their technology, but smaller chains and independent stores have struggled to keep up.
Franchisee Tom Peterson demonstrates a new Domino's Pizza Inc. app, part of their digital ordering system, at a Domino's "pizza theater" location in Jersey City, New Jersey.
Craig Warga | Bloomberg | Getty Images

The Supreme Court denied a petition from Domino's Pizza last week to consider whether its website must be accessible to people with disabilities.

The decision not to hear the case means that other places of accommodation – including restaurants, retailers and movie theaters – could find themselves in court fighting similar allegations as both businesses and disability advocacy groups look to the federal government for more specific technical guidelines.

The Department of Justice has said since 1996 that websites have to comply with the Americans with Disabilities Act. But lax enforcement has led disability rights advocates to take matters into their own hands. Last year, more than 2,200 such suits were filed in federal courts, according to the accessible technology firm UsableNet, nearly tripling the number a year before.

Domino's will now have to fight the claims of the plaintiff, a blind man named Guillermo Robles, in court. The decision of the Ninth U.S. Circuit Court of Appeals, the lower court that ruled against Domino's, holds as a result of the Supreme Court's refusal. The Ninth Circuit has jurisdiction in nine western states, including California.

Emily White, a Cleveland, Ohio-based attorney who handles ADA cases at the Dann Law Firm, said that outside of the Ninth Circuit, the court's decision will be used as a persuasive example for similar cases.

Domino's said in a statement to CNBC that its website and app are already accessible. In the company's petition to the Supreme Court, it said that since February 2017 both its app and website have featured a banner that directs customers to call a customer service phone number if they are having trouble using screen readers.

"Although Domino's is disappointed that the Supreme Court will not review this case, we look forward to presenting our case at the trial court," Domino's spokeswoman Jenny Fouracre-Petko said. "We also remain steadfast in our belief in the need for federal standards for everyone to follow in making their websites and mobile apps accessible."

The National Retail Federation, one of several business groups that backed Domino's petition, said in a statement that the Supreme Court could have established a nationwide standard for evaluating web accessibility claims under the ADA. The NRF argued in a brief filed with the court that the Ninth Circuit's decision stretched the definition of "places of public accommodation" too far when it included websites and mobile apps.

Stacy Cervenka, the director of public policy for the American Foundation for the Blind, which celebrated the Supreme Court's decision, also said that she supports more specific federal regulations from the DOJ. In 2017, President Donald Trump's administration withdrew proposed rulemaking on the topic that was originally proposed by the DOJ in 2010 on the 20th anniversary of the ADA.

"...It would be much easier and there would likely be much more accessibility if the Department of Justice put out crystal clear guidelines on this topic," Cervenka said in an email.

Aaron Allen, the founder and chief strategist of restaurant consultancy Aaron Allen & Associates, said that his firm was still looking into the financial implications for the industry.

"This is a hot new topic that will be landing on boardroom tables and agendas over the weeks and months that follow," Allen said.

The pizza chain is not the first major restaurant company to be sued for digital channels that do not comply with the ADA. In 2017, McDonald's confidentially settled a lawsuit that alleged its website and mobile app did not accommodate the visually impaired. (The Dann Law Firm represented the plaintiff.)

But Domino's has been a leader in the restaurant industry when it comes to technology and e-commerce for the last 10 years. Over 65% of Domino's U.S. sales come from digital channels, thanks to investments in its mobile app and features like an online order tracker and voice ordering.

Domino's tech team is the largest department at the company's headquarters. Other large restaurant companies, like McDonald's and Starbucks, have been bulking up their own tech departments in recent years. Smaller chains and independent restaurants have struggled to keep up.

With the help of its tech muscle, Domino's has consolidated power across the pizza industry. In the last decade, independent pizzerias slipped from holding 60% market share to just 40%, Allen said. If they face similar lawsuits or cannot find an inexpensive way to make their websites accessible, Domino's could end up winning an even greater chunk of the market.

"In the short term, it's going to hurt Domino's, but it's going to hurt their competition more," Allen said.

Companies looking to avoid litigation should ensure that their own websites and mobile apps are accessible to people with disabilities. For example, images should have captions for visually impaired customers who use screen readers, and consumers should be able to navigate the website using only a keyboard.

The American Foundation for the Blind has a consulting arm that can provide expertise to help organizations design their websites and apps with inclusion in mind.

Shawn Pike, the vice president of sales for User1st, a software company that focuses on ADA website compliance, said that making websites accessible is relatively inexpensive, compared to the cost of changing a physical location to make it ADA-compliant.

User1st works with businesses ranging from small wineries in upstate New York to Fortune 500 companies. Pike said that with education, clients understand that making their websites and mobile apps accessible is not just a compliance issue – it's also good customer service.

A 2018 study from the American Institutes for Research found that roughly one in five Americans have a disability, and they control nearly half of a billion dollars in disposable income. As baby boomers age, the population of people with disabilities will continue to grow.

— CNBC's Tucker Higgins contributed reporting.

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