Out-Law News | 12 Sep 2006 | 8:40 am | 7 min. read
The National Federation of the Blind (NFB), a non-profit group based in Baltimore, and one of its members, Bruce 'BJ' Sexton, a student in California, are suing the retail giant. The action was filed on behalf of all blind people in California who are denied access to Target.com.
The complaint cites various problems with Target.com: alt-text is missing from images, preventing screen readers from describing them to blind users; purchases cannot be completed without a mouse because keyboard controls do not work; image maps are inaccessible; and headings are missing that are needed to navigate. In short, the site is badly designed, says the NFB.
The lawsuit was brought in February, alleging breaches of the federal ADA and two state statutes, the Unruh Civil Rights Act and the Californian Disabled Persons Act.
Target filed a motion to have the case dismissed. On Wednesday, in the US District Court for the Northern District of California, Judge Marilyn Hall Patel dismissed that motion. But her ruling is not a hands-down victory for web accessibility: Patel did not rule that Target.com or any other website is required to be accessible; and she threw out part of the NFB lawsuit.
The ADA claim in the lawsuit is a narrow one. The ADA talks of the need for places of public accommodation to be accessible to the disabled. It lists hotels, cinemas, banks and zoos as examples of such places. An attempt to add websites to that list has failed before: in 2002, a Florida district court judge characterised a blind person's argument against Southwest Airlines as "emotionally attractive" but not "legally viable".
Mindful of that ruling, the NFB took a different approach against Target. Its main argument identified Target.com not as a place of public accommodation but rather as a service and benefit offered by Target stores in California, which are themselves public accommodations.
The NFB's argument under the ADA is not that a blind person cannot place an order at Target.com. Instead, this case looks at the website's store locator, which helps people to find a local store's location and opening hours. It looks at the online pharmacy, where customers can order a prescription refill before driving to and collecting orders at a Target store. And it looks at discount coupons on its website, that can be printed and redeemed when you visit a store.
Struan Robertson, editor of OUT-LAW.COM and a technology lawyer with Pinsent Masons, said: "This case is very unlikely to establish whether the ADA applies to sites like MySpace, Google, Yahoo!, YouTube, Amazon.com or any other US-based, pure-play dot.coms."
But Mazen Basrawi, Equal Justice Works Fellow at the Berkeley-based Disability Rights Advocates, who is representing the NFB and BJ Sexton, told OUT-LAW, "If a pure internet business looked at this case and said 'we're off the hook', they're greatly mistaken."
He points out that the California laws are wider in scope than the ADA – and the arguments under these state laws survived Target's attempt to remove them from the case in last week's opinion.
Basrawi also suggests the day of the ADA's application to all websites could come. He pointed to a case that came before an appeals court in Illinois, in which a judge said that the ADA does apply to websites. He acknowledged that the case was not concerned with website accessibility and therefore the judge's statement is not binding on other courts. "The issue won't be fully resolved until it's decided by the Supreme Court," he said.
Judge Patel summarised the NFB's argument thus: "Plaintiffs' legal theory is that unequal access to Target.com denies the blind the full enjoyment of the goods and services offered at Target stores, which are places of public accommodation."
Target tried to argue that a website is not covered by the ADA at all. Judge Patel clearly disagreed: "The statute applies to the services of a place of public accommodation, not services in a place of public accommodation. To limit the ADA to discrimination in the provision of services occurring on the premises of a public accommodation would contradict the plain language of the statute."
She continued: "it is clear that the purpose of the statute is broader than mere physical access – seeking to bar actions or omissions which impair a disabled person's 'full enjoyment' of services or goods of a covered accommodation."
She acknowledged and distinguished the 2002 Florida ruling in the case brought against Southwest Airlines by disabled rights charity Access Now on behalf of a blind internet user.
"In Access Now, the court held that plaintiff failed to state a claim under ADA because plaintiff alleged that the inaccessibility of southwest.com prevented access to Southwest's 'virtual' ticket counters," she wrote. "'Virtual' ticket counters are not actual, physical places and therefore not places of public accommodation. Since there was no physical place of public accommodation alleged in Access Now, the court did not reach the precise issue presently in dispute: whether there is a nexus between a challenged service and an actual, physical place of public accommodation."
She added: "the challenged service here is heavily integrated with the brick-and-mortar stores and operates in many ways as a gateway to the stores."
This nexus between a website and a brick-and-mortar store was key to Patel's interpretation of the ADA. "Her opinion is applying existing precedent to web access as we expected she would do," said Basrawi. "So far as the website has any services unconnected with the physical store, those things are off-limits … She did eliminate the possibility of the claim reaching beyond where there is that nexus; but there's still a lot of room for manoeuvre because so much of the website is connected with the stores."
Patel hinted that if inaccessibility is proved, it might be sufficient for Target to offer the relevant website services in another format, such as over the phone.
She also wrote: "To the extent that Target.com offers information and services unconnected to Target stores, which do not affect the enjoyment of goods and services offered in Target stores, the plaintiffs fail to state a claim under Title III of the ADA."
This could be interpreted as excluding core parts of the Target.com site from the judgment. Basrawi reads it differently: browsing online with a view to purchasing in-store is a common use of a website, he points out. So arguably the entire site should become accessible.
Basrawi described the ruling as "fantastic," notwithstanding the need for a nexus between a website and a physical location. "That is a large part of ecommerce," he said. "The court clarified that the law requires that any place of public accommodation is required to ensure that it does not discriminate when it uses the internet as a means to enhance the services it offers at a physical location."
Basrawi is also pleased that the court refused to dismiss the claims under the state legislation. Judge Patel disagreed with Target that, if the court applied the Unruh Act and Disabled Persons Act to Target.com, the practical effect would be to force it to modify its website for all customers nationwide.
"Target could choose to make a California-specific website," she wrote. And "even if Target chooses to change its entire website in order to comply with California law, this does not mean that California is regulating out-of-state conduct."
Target argued that the internet requires uniform, national regulations. Only Congress, not California, should regulate Target.com, it said. But Patel disagreed: "a state's ability to extend benefits or protections to its citizens through its laws is not necessarily precluded by the failure of Congress to act. Indeed, Congress' inaction can be viewed as an encouragement to state legislatures to fill the gaps left in the statute. Thus, the lack of Congressional action explicitly addressing accessibility requirements for private websites should not be construed to bar the extension of the protections of California statutes to these websites."
Accordingly, California's disability rights laws, rather than the ADA, could be the stick that forces US websites to become accessible.
As for the claim that Target.com is not accessible to blind users, further proof will be needed. Target offered declarations from three blind individuals who said they had successfully navigated the site. "I was able to access Target.com, navigate the various links on the site, and search for specific products," said one user of screen reader JAWS. "I thought using Target.com was fun," said another.
NFB said Target's test users were not typical blind shoppers but "web Olympians" with unusually high levels of skill in web technology, "individuals who enjoy the challenges of troubleshooting and the difficulties of overcoming barriers on a given website."
The NFB's own test users were attacked by Target: many of them admitted to spending a short time on the site before concluding that it was inaccessible, said Target.
There is another federal law in the US that deals with web accessibility. The rule, known as Section 508, mandates accessibility requirements in federal procurement. But it does not generally apply to private sector websites. In contrast, the UK has a sweeping obligation on all websites offered to the public: they must be accessible and usable by disabled people.
Other countries may follow the UK's approach. On 25th August 2006, the United Nations published an agreed text of a draft International Convention on the Rights of Persons with Disabilities. It addresses web accessibility among its many provisions.
Amongst the draft Convention's provisions is a clause which orders signatory states to "take appropriate measures to ensure to persons with disabilities access, on an equal basis with others, to … information, communications and other services, including electronic services".
A second clause orders signatory states to urge "private entities that provide services to the general public, including through the internet, to provide information and services in accessible and usable formats for persons with disabilities".
The Convention, if implemented into US law, could be an opportunity to remove the ambiguity surrounding the ADA's application to websites. But while the US participated in negotiations to formulate the draft convention, it said that it would not sign it. A spokesman for the US State Department, which deals with international affairs, said at the time that adequate protection was provided by ADA.
When this was put to Basrawi, he was not surprised to learn that the US would not be signing up. He pointed out that the Bush administration is not keen on international treaties.
Target did not respond to a request for comment for this story.