The U.S. Supreme Court.

For two years, retailers have sounded alarms over the surge of lawsuits by visually impaired consumers saying they’ve had trouble navigating the companies’ web sites. Now, in a case involving Domino’s Pizza, the retail industry has spotted an opportunity for relief.  

On Tuesday, the National Retail Federation and the Retail Litigation Center filed an amicus brief encouraging the U.S. Supreme Court to hear a case in which a blind Domino’s customer had alleged that he wasn’t able to order a custom pizza through the company’s web site or app. 

Domino’s had filed its petition in June to ask the high court to consider a question that of late has also dogged fashion brands and retailers. Does the Americans with Disabilities Act, a decades-old civil rights law that protects consumers with disabilities, require not just companies’ physical locations, but also their web sites and apps to be fully accessible?  

There were more than 2,250 federal lawsuits in 2018 over web site accessibility, an exponential increase from previous years, according to the Domino’s petition. The retail industry argues that if courts could so broadly interpret the ADA, a law enacted by Congress in 1990 around the dawn of the Internet era, it would only make companies more vulnerable to consumer lawsuits. 

“A reason that this case is important for retailers is because it make retailers targets for private party litigation,” said Kathleen McGuigan, executive vice president and deputy general counsel at the Retail Industry Leaders Association. “Fighting unwarranted litigation will take much needed resources away from efforts that will provide real access to the disabled community.”  

Plaintiffs’ attorneys have targeted a range of fashion brands and retailers in such suits, claiming that those companies’ sites are not properly designed to be read with screen-reading software that helps visually impaired readers navigate the Internet. 

For instance, Wilshire Law Firm in California has brought several suits in federal court there on behalf of visually impaired plaintiffs targeting companies including Gucci, Lululemon USA Inc. and J.C. Penney Co. Inc. The suits generally describe the importance of screen-readers to blind consumers, and how they don’t work when web sites’ content can’t be converted to text. A number of the cases brought by the firm have settled, according to court records. A representative for Lululemon said the company does not comment on legal matters. The other companies could not be reached for comment Wednesday.

Thiago Coelho, an attorney from the firm, framed the issue as a matter of basic fairness at a time when shopping online is the norm.     

“If you look back 10 years or 20 years ago, the Internet wasn’t used as much as it is now, but now almost everything is done online,” said Coelho of Wilshire Law Firm. “So by companies not having their web sites properly coded, it makes it really hard for a blind individual who can’t use web sites just as well as we can.” 

Defense attorneys representing fashion brands say such complaints follow a familiar pattern, usually starting in the form of a letter or e-mail to the brand from plaintiffs’ attorneys, and often settling before too much litigation. 

“The question of ‘is the Internet a place of public accommodation’ has been thrown to the courts,” said Doug Hand, a partner at Hand Baldachin & Associates LLP, who has defended fashion brands against such complaints. “This is an interpretation that is ripe for treatment by the Supreme Court.” 

Companies have particularly homed in on Title III of the ADA, which says that consumers should be able to access goods and services at “places of public accommodation.” Retailers argue that one of the problems is that neither Congress nor the Justice Department, which enforces the ADA, have been explicit about whether that provision definitely includes web sites, or how it would apply to them. And they argue that courts should not devise their own interpretations.  

 “It’s not that any of our members think that their different channels shouldn’t be accessible, it’s just the legal ramifications,” said Stephanie Martz, general counsel at the NRF. “It’s problematic for courts to decide, without regulatory or legislative guidance, that companies should be liable.”