Mike Ervin writes in the December 2019/January 2020 issue of The Progressive magazine about the way that the Dominos pizza chain responded to a blind customer Guillermo Robles who filed a lawsuit in 2016 that the company’s mobile app did not have the features that would enable blind people to navigate it, thus violating Title III of the 1990 Americans with Disabilities Act that requires that disabled people be provided with access to places of “public accommodation”. This act has opened up vast areas of life that had hitherto been closed to people with disabilities.
You would think that the natural response to this suit, especially from a big company with deep pockets, would be to say “Oops! My bad” and quickly install such a feature on the app. It would seem to me to be a fairly easy fix that would not take much time or money to do, would expand its customer base, and generate good will as a caring company. But that shows how little I know about how capitalism works. Dominos decided to fight the case all the way, arguing that ‘public accommodation’ applied only to its bricks and mortar stores, a bizarre claim.
In 2017, US District Court judge S. James Otero ruled in favor of Robles, that the website is a place of public accommodation. But Dominos pulled out another argument. They said that the 1990 act did not lay out rules for websites (because of course this was before websites existed) and since the Justice Department had not provided such guidelines, they could not be expected to comply. Surprisingly, Judge Otero agreed with this and dismissed Robles’s suit without the case actually being argued.
But Robles appealed this summary dismissal and won his appeal in a unanimous ruling by the Ninth Circuit of the US Court of Appeals that said that the lack of action by the Justice Department meant undue delay and referred the case back to the lower court for a hearing and adjudication.
But Dominos was not done in avoiding doing the right thing. In June of this year, the company appealed that ruling to the US Supreme Court, saying that the ruling “explodes the reach of Title III to the online world”, as if that was a bad thing.
But on October 7, the Supreme Court denied the petition, meaning that the Appeals Court verdict will stand. This does not mean that Robles has won his case. It only means that his case will now be argued at the District Court level. There are more than 2,200 such suits seeking access for the disabled currently in federal courts.
For those not familiar with Dominos, apart from its lousy pizza, its founder Tom Monaghan is an extremely devout Catholic with highly conservative and, of course, anti-gay views. So sticking it to the disabled as well seems to be consistent with his view of Christianity. In 1998, he sold 93% of his stock to Bain Capital, which seems to be continuing to maintain his bigoted culture in the company.
Ervin seems to have overlooked the significance of something he does mention:
With no standard set, how can anyone achieve an acceptable standard?
This has, I gather, opened up a virtual industry of lawsuits, with opportunistic lawyers and (some) gullible clients claiming discrimination and websites unable to defend themselves. As a result -- for example in the county & state where I live -- a lot of public records previously available online have been shut down “for upgrading” and an already overloaded workforce answers public queries over the phone and in person. Everybody gets the same, slower and more inconvenient, service, so there’s no “discrimination” and no (less) risk of litigation.
The whole process continues indefinitely, since our national Shyster General has closed down the only legally meaningful standard-setting process, leaving the entire public (handicapped and non-) hobbled, with thousands of municipalities and countless businesses unable to fully function and courts jury-rigging inconsistent standards that will take decades to systematize.
Arrogance and refusal to resolve simple issues is sadly nothing new. When text messaging first came along, cell phone companies refused to provide text-only plans for the Deaf and Hard of Hearing. They wouldn’t sell cells without a voice plan.
And it’s not just corporations, essential services do it too. There are scant few places which offer 911 text messaging, despite the fact that the DHoH need it, as do people hiding from armed gunmen.
Phones are inherently inaccessible. But everything requires them. And current section 508 accessibility standards encourage phones, as long as they also have a tty number for people who are abled enough to register, and disabled enough to prove they can’t use the phone, for the right reasons, in a system that requires them to use the phone.
Websites could be a lot less inaccessible. But current web design practices make many inaccessible. For example, there’s a lot of emphasis on maing web sites appear as the web designer wants, not as the end-user wants or needs. I have a strobe sensitivity and visual motion sensitivity, so common practices such as blinking cursors, tab loading animation, animated login screens, animated gifs, animated pngs, zooming animation, zoom on scroll, zoom on mouseover, jump on mouseover, carousel animation, jitter animation, judder animation due to different font settings in endless-scrolling pages, page-turning animation, modals and other in-page pop-ups, autoplay, autoscroll, smooth scrolling, jacking page up and page down to have them animate smooth scrolling, ease in-out, scrolling foregrounds in front of non-scrolling backgrounds, scrolling one side of the page without scrolling the rest, scrolling or marquee text, having objects initially scroll with the rest of the page and then jump about, sticky headers, overlapping text due to different font settings, and so on, can give me migraines and nausea. That’s a different set of accessiblity challenges from what most blind users face. But an emphasis on working with the end-user’s settings might help either way.
The law is the law, and if the law supports this suit then it’s completely valid.
That said, I question the practicality -- not the justice -- of certain suits, including this one. If you have a smart phone that runs apps, then you also have a digital voice assistant. “Siri call dominos” seems like a perfectly adequate solution to me.
Of course, maybe I just don’t know what ordering pizza is like these days. If dominos is no longer taking phone orders and instead shunting them to the app, then of course my observation doesn’t apply. But I’d be kind of surprised if they’d shut down such phone calls.
In any case, it would be interesting to read the plaintiff’s initial information/complaint to find out just what it is that is provided through the app that can’t be provided through a phone call from the same phone.
Of course, the practicality concerns aren’t limited to the plaintiff’s side either. If you take the complaint of a customer and do something about it, that’s PR gold. If you fight the case in court and lose, you have all the expenses of reprogramming your app, all the court costs AND 12 parsecs full of negative PR. Why wouldn’t you just do the right thing?
I mean, i realize that some companies might be worried about a case establishing a precedent that would be so costly as to run them out of business, but that’s literally impossible here. While “reasonable accommodation” for a big company might include requirements that would force a small company out of business, and if your small company can’t afford a knowledgeable lawyer when getting sued, a bad process might apply a standard meant for other contexts to a context in which it is unreasonable to meet. In those cases small companies can go out of business (and have) or have to put off needed upgrades because legally those can’t be permitted under the building codes unless a refurbishment includes accessibility modification. Yes, this can suck for smaller businesses, but you’re Dominos fucking pizza, not some corner laundromat. There’s no way that this change is going to even significantly dent your profits, much less shut you down. How do you even look yourself in a mirror when you’re a Dominos executive and you’re fighting something like this?
No doubt you can still call them and get some kind of service.
However, many places offer special deals when using an app, which may not apply otherwise. Because these days every-fucking-one is expected to own and use a smartphone for everything.
Alternatively, you may get “points” on your personal account, for coupons or gifts or whatever, and it’s not hard to imagine that a blind person may not have an easy time doing the same when calling on the phone. I haven’t eaten anything from them in maybe 20 years, but their website indicates that Dominos does have some kind of rewards program like that, tied to a person’s account.
Anyway, the basic result that “they can still get pizza by talking on the phone” doesn’t imply that they’re being treated equally.
I would say that if you’re big enough to do any one of the following things, then you’re big enough to sit at the grown-up’s table and do each of them fairly. And if you’re doing them all …
(1) selling goods/services at the store
(2) selling goods/services via phone calls, by which I mean talking on a standard/antique telephone
(3) selling goods/services through your company’s website and/or an app that was designed/developed specifically for your company
… then in fact, that is not a small operation anymore, and it is definitely not a corner laundromat. (Good luck sending your dirty undies through your smartphone. Apple disabled that feature with the last update.)
I think the specifics above in item #3, referring to your company’s website or your company’s app, are relevant. Maybe a bit of tweaking and legalese would be important, but at any rate, here’s the basic idea….
It’s not onerous for various third-party companies to handle such things (as they typically do), for small or not-so-small businesses that can’t or won’t do all this stuff under their own banner. Those third-party companies (web developers, marketing firms, or whatever they may be) should be equipped to handle the kind of accessibility requirements we’re talking about. They can do it for a large number of their client businesses, all at the same time, with minimal additional investment (if they haven’t already done it). So, I think the fear that this would hurt small businesses is probably blown out of proportion, if it’s based in reality at all. I don’t know if any would be affected much by it at all.
I don’t understand how blind people use touch screens at all. Touch screens are optimised to receive input without providing touch feedback, while concentrating visual feedback into a very small space, in smartphones anyway. So the tendency is to move away from text and towards images.
Dominos must have spent quite a lot of development time and effort designing their app to show images rather than text (visual ingredient representations on a visual pizza representation). It can’t be easy to have that switch to a completely text format, in situ, on demand, but maybe it’s just an issue of Dominos internally attaching captions to their images that can be read and provided as audio feedback when using, say, audio descriptions in accessibility. That wouldn’t seem too difficult.
But if that isn’t sufficient, it would seem a bit like a blind person sueing because they can’t read an advertisement on a billboard. In that case I would think a combination of a text menu of costs and available ingredients from a different menu together with “Siri call Dominos” would be all one could reasonably expect.
What this article doesn’t explain is how much discussion took place before the issue went to court, which would seem to be absolutely the worst place to resolve this kind of thing. I can understand the claimant’s point of view if they requested specific, reasonable, changes which were denied, but the defendant’s if it was a general “the app isn’t good enough for me as a blind person” claim.
This is one of my pet peeves. There’s this attitude that the existence of all kinds of “technology” means you have to make people use it. The use of video and audio, in many cases, websites that won’t work without you watching their videos and listening to their audio. Graphics that require excellent visual acuity, and “gui”s that require fine motor coordination. (MS Windows is terrible for this — you have to get the right part of the mouse on the right pixel, or things like scrolling or size changing won’t work.) And I’m not blind or deaf. The attitude of the web developer is, “hey, the website works fine for me, that’s all I care about.”
BTW, one thing I have a hard time with is getting information from videos, and it seems like more and more postings on FreethoughBlogs basically consist of a video, an uninformative introduction, and some commentary that makes no sense unless you’ve watched the video — and been able to comprehend whatever you’re supposed to have gotten from the video. I am not a linear thinker and have a hard time translating linear media into anything I can understand, and nobody here ever supplies a transcript, so these postings might as well be in ancient Sumerian for all that I can get out of them.
On that note, Rebecca Watson, over at Skepchick, always supplies a transcript with her videos, which is a (you should excuse the expression) God-send. It means I actually have some idea what she is saying. By comparison, it seems like most Freethough bloggers are giving those of us who have trouble with videos a big fat “F*** you.”
You embed an option for pushing buttons to corners and limiting the screen to just a few choices at a time, and then have tags for language that will automatically be voiced by the text-to-speech function. These options trigger only when certain accessibility features are turned on. “Press top left for option 1,” etc. then becomes fairly easy to navigate. When you open a box for inputting text, you use your own speech-to-text function to fill in things like your address.
I really don’t know anything more than that, and there are probably multiple ways of doing this (and I haven’t seen any of them for 3 or 4 years now). Most of my admittedly pitiful understanding comes from the friend-of-a-friend who is now retired but spent 30 years in an agency that provided various types of assistance to blind and vision-impaired Portlanders.
That said, her own take at the time was that many of these things were much more cumbersome than simply using your smart-phone assistant to place a phone call for you and then speak to someone live. This is why I wonder if there’s some additional functionality in the Dominos app as it currently exists. For instance, if you call Dominos, you’re probably calling a single, specific location that you think is closest to you. But you may not know a new one opened up or you may not know that the closest Dominos is slammed while one slightly farther away isn’t getting nearly as many orders. A Dominos app might factor in how many pending orders there are at the nearest location and shunt you somewhere else if you’ll get your pizza faster that way. But that’s definitely not something an individual working in a location can do. It would have to be something like a Dominos internet where every order is logged into the Dominos database and this info can be quickly used by a Dominos app server routine, but if you had individual employees stopping work to check and see what the wait times were like at nearby restaurants, you’d slow things down more than you would help.
So a smart phone app is doable, and if implemented correctly could possibly have features that would make it more desirable than calling your local shop. So theoretically this lawsuit could improve things for some people. However, as I’ve said, whether or not it actually benefits depends on other things that aren’t specific to visual-impairment, like server-side software to shuffle orders to the most efficient location. If that stuff doesn’t exist, then even a victory in the suit probably won’t provide an actual net benefit in service.
What the victory would do in that case is validate the idea that people with disabilities aren’t expendable -- and that is worth quite a bit. But what it is worth and why doesn’t have anything to do with the particular functionality of a particular app.
Touchscreens also fail if you have shaky hands, so you can’t handle the tiny buttons, or you can’t avoid accidental double clicks or accidental gestures. And if you have visual motion sensitivities, so you get sick from the extra buttons moving out of the way, or from the zooming from accidental gestures. And most of them use blindingly bright screens.
The main advantage is that they allow software to set its own buttons, keyboards, etc. and don’t require a trade-off between screen space and keyboard space.
In principle, reducing sensitivity, dropping gestures, using overlays with holes, and/or using user settings to allow these, can make them less inaccessible.
@file thirteen(#):
About those images. HTML has a text descriptor for images (alt=””). That is meant for not only to be used as placeholder until the image loads but also for text to speech program use. And the Dominos website should already be using it to comply with the law they are now being sued over. Shouldn’t be too hard to transfer that to the app.
Allison, I’ll come sit by you. I also hate videos, and don’t watch them, unless they are very short and necessary to communicate specific visual information. I really wish having transcripts of videos was standard practice -- I do feel disregarded.
Short version:
If Dominoes is smart they’re using the lawsuit to buy time while they implement the changes because they probably already have experience with lousy foreign developers putting out bad code and taking forever to do it.
Long version:
My experience with software development has mostly been at companies that are smaller than Dominoes. So it’s possible the process works better for them if they’re willing to pay out more money but I don’t know that we should assume that.
Basically a lot of development went overseas. Companies keep some developers locally because they want someone to blow the whistle if the code ends up bad. Then they farm out the rest of the development, usually at least 2/3rds of it and up to 90% of it to a cheap foreign outfit.
The results of this tend to be abysmal. I don’t know if it’s from language barriers, apathy about people who aren’t even awake when you are, or what but every time I see this the results are years late, nowhere near as ambitious as first proposed, and cost far more than initially budgeted. But by the time management is ready to admit a mistake, they’ve sunk far too much into this fool’s errand to ‘fess up that they’ve been boondoggled.
So money keeps getting shovelled at the foreign developer. Your local devs often end up being the primary developers in the end anyway. And generally everyone except for management begins to acknowledge that the foreign link is a bunch of mostly useless leeches whose only “virtue” is giving management an excuse to ask more work out of less people locally. An excuse born out of their own incompetence.
This story gets even more ridiculous if the foreign company put some sort of clause in the contract making sure they’d get the exclusive right to patch and fix the end product. Thus making it a case of abandoning even the local developer’s code to start from scratch again if you want to ditch your foreign entanglements. I’ve started to wonder if this sort of thing is present in some contracts because otherwise I can’t see much reason to stick with another company that just isn’t meeting your needs.