What the Domino's Case Means North of the Border

What happened on Monday

On Monday, the Supreme Court of the United States declined to hear an appeal from Domino's Pizza in a case about the accessibility of its website and app.

The case was brought in 2016 by a blind customer, who said his screen-reading software could not use Domino's website or app to order a customised pizza.

In January, the US Court of Appeals for the Ninth Circuit ruled that the Americans with Disabilities Act applies to the website and app, because they connect customers to the goods and services of Domino's restaurants.

Declining to hear the appeal leaves that ruling in place. It does not decide whether the site was actually inaccessible; the case now returns to the trial court to answer that.

What the ruling did and did not say

• The Act applies to the website and app, through the restaurants.
• No specific regulation was needed for the duty to exist.
• WCAG was not made law, though a court may order it as a remedy.
• No finding yet on whether Domino's broke the law.
• Federal courts in the western states must follow it directly.

The last is worth a moment for BC businesses. The Ninth Circuit covers the western states, Washington included, the American market closest to home.

Why US courts do not all agree

The Americans with Disabilities Act dates from 1990, before most businesses had websites, and it does not mention them.

Courts have had to decide how its rules for places of public accommodation, such as shops, restaurants and hotels, apply online. The Ninth Circuit looks for a connection to a physical place, which Domino's restaurants supplied.

Some other courts have read the law more broadly, and the question is unsettled for businesses that exist only online.

No federal regulation sets a technical standard for private websites under the Act either. Courts and settlements have generally looked to WCAG instead.

Canadian businesses that sell to Americans

The Americans with Disabilities Act is a US law. A Canadian business with no American premises is in less settled territory, and the answer depends on facts a lawyer would want to know.

The question is more pressing for a Canadian business with a store, an office or a subsidiary in the US, and worth asking for one with substantial American sales.

This is general information, not legal advice. A business in either position should put the question to a lawyer who practises in the states where it sells.

For everybody else, the case is less a legal matter than a description of what an inaccessible site costs: a customer who wanted to buy and could not.

The position in Canada

Ontario is the clearest example of a rule for private websites. Under its accessibility law, organisations there with fifty or more employees have until January 1, 2021 to bring their websites up to WCAG 2.0, level AA.

The Accessible Canada Act, law since June, applies to the federal government and federally regulated industries rather than most small businesses. Manitoba and Nova Scotia have accessibility laws too, though neither yet sets a website standard for businesses.

Human rights codes, federal and provincial, prohibit disability discrimination in services offered to the public. How they apply to a particular website is a question for a lawyer.

Ordering is where sites fail

The Domino's complaint was about ordering: choosing options, building an order and paying. That is where many small business sites fail too.

Drop-down menus built from styled boxes rather than real form controls, which a screen reader often cannot announce or open. Buttons that are only an icon. Product photographs with no description.

Error messages shown only as a red outline. Pop-ups that trap the keyboard. Checkout steps that time out before somebody using assistive software can finish.

A worked example

A two-person studio in Victoria designs knitting patterns and sells them as downloads, mostly to customers in the United States.

The owners read about the Domino's decision and wondered whether it applied to them. That was a question for a lawyer; the more useful one was whether a blind knitter could actually buy a pattern.

They tried the store with VoiceOver on an iPhone. The size range menu was custom-built and announced nothing, so a pattern could not be added to the cart.

Pattern photographs had their file names as descriptions, and checkout errors appeared only as a red outline around the field.

Their web company replaced the menu with a standard form control styled to match, wrote descriptions for the photographs, and added text to every error. The store looks the same, and a customer using VoiceOver can now complete an order.

WCAG 2.1 is still the practical standard

Whichever law applies, the technical yardstick is the same. American settlements and Ontario's law both rely on WCAG, the Web Content Accessibility Guidelines.

Version 2.1, published in June last year, keeps everything in 2.0 and adds checks for phone users and people with low vision or cognitive disabilities. Level AA is the usual target.

A site that meets 2.1 at AA also meets 2.0 at AA, so it satisfies whichever version a rule or settlement happens to cite.

Testing the path that earns money

The test that matters is the one the Domino's customer could not pass: completing a purchase or a booking without a mouse and without looking.

Use only the keyboard first: Tab to move, Enter or the space bar to choose. Then listen your way through with a screen reader: VoiceOver, built into every iPhone and Mac, or NVDA, a free one for Windows.

Write down every point where you get stuck. Those points, not the home page, are what to fix first.

The counter-case

A Canadian business with no American customers, no American premises and a simple brochure site takes no new obligation from this case.

A ruling in a US court is also a poor reason for alarm. It decided who is covered in one region, not what every website must contain.

And not every page carries the same weight. A blog post with an undescribed image is a smaller problem than a checkout nobody can finish.

Make WCAG 2.1 AA the target, starting with the path where customers order, book or pay.

The check this month

1. Note where your American customers come from.
2. Ask a lawyer if you have US premises.
3. Try your ordering path with only a keyboard.
4. Repeat it with a screen reader.
5. Replace custom menus with real form controls.
6. Describe product photographs in plain words.
7. Add WCAG 2.1 AA to your next website brief.

Step four is the one that shows what the case was about. Ten minutes listening to your own checkout tells you more than any summary of the ruling.

Canada's own new federal law is covered in the Accessible Canada Act and a small business website.

Frequently asked questions

West Coast Media Solutions Inc. provides web design, web development, hosting, digital marketing, and business consulting to organisations across Canada, drawing on more than twenty-five years in the field.