Retail and Consumer Brands Seminar
Out-Law News | 14 Feb 2006 | 9:40 pm | 4 min. read
The action is being brought by the National Federation of the Blind (NFB), a non-profit group based in Baltimore and one of its members, Bruce "BJ" Sexton, a student at Berkeley, University of California. The lawsuit is filed "on behalf of all blind people in California."
Target.com's homepage says is "powered by Amazon.com" although the extent of the connection between the sites is unclear. According to the complaint, alt-text is missing from images on Target.com, preventing screen readers from describing them to blind users. Purchases cannot be completed without the use of a mouse (websites should allow the user to control such functions with only a keyboard). Image maps are inaccessible. And headings are missing that are needed to navigate.
The retailer is accused of violating the California Unruh Civil Rights Act, the California Disabled Persons Act and the Americans with Disabilities Act
NFB President Dr Marc Maurer said: "Blind customers should have the same access to Target’s online services that Target offers its sighted customers."
“We tried to convince Target that it should make its website accessible through negotiations,” he continued. “It’s unfortunate that Target was unwilling to commit to equal access for all its online customers. That gave us no choice but to seek the protection of the court. The website is no more accessible today than it was in May of last year, when we first complained to Target.”
OUT-LAW spoke to Mazen Basrawi, Equal Justice Works Fellow at the Berkeley-based Disability Rights Advocates. He is representing the NFB and BJ Sexton and he acknowledged the widespread confusion about the application of US accessibility laws to websites.
He explained that the California Unruh Civil Rights Act requires any business establishment of any kind to be accessible if doing business in California. The California Disabled Persons Act requires any 'public place' to be accessible – and the Act's list of relevant places ends with the words "and other places to which the public are invited." He argues that Target.com is such a place.
The Americans with Disabilities Act (ADA) talks of the need for places of public accommodaton to be accessible to the disabled. The Act was passed in 1990 – before the World Wide Web existed – but its application to websites has been tested.
A Florida district court judge ruled in 2002 that she could not extend its list of relevant public accommodations – such as hotels, cinemas, banks and zoos – to include websites. Notwithstanding, New York Attorney General Eliot Spitzer took an action against the operators of Ramada.com and Priceline.com in 2004, accusing them of breaching the ADA for having inaccessible websites. The companies settled out of court.
The NFB lawsuit attempts to circumnavigate the Florida court's reasoning. It explains that Target.com is a service and benefit offered by Target stores in California, which are themselves public accommodations.
Target.com, the lawsuit explains, is not just for e-commerce. It also provides a store locator, allowing persons who wish to shop at a Target store to learn its location and opening hours; it offers an online pharmacy, where customers can order a prescription refill for picking up at a Target store; or they can find coupons online and redeem them in stores for groceries.
Basrawi hopes that even if the Californian court rules that the ADA does not apply, California's own disability rights laws will be upheld against Target. "They're slightly wider in scope than the ADA," he said.
Asked if Congress should clarify the legal obligation on website operators, Basrawi replied: "It certainly would be helpful – but I'm not sure this Congress would do that because they tend to favour business."
However, he does not consider intervention by Congress to be the only solution. If only the Californian statutes are upheld against Target, that will be a victory. These laws have not been tested on websites; but if the test succeeds, Basrawi said that any company wanting to do business in California and sell to any Californian consumers would consequently need to make its site accessible.
He acknowledged that the further you go from Target's business model, the harder it will be to apply this legislation. A pure dot.com – rather than a clicks and bricks business – might never be sued.
"What we hope is that we'll raise awareness," he said. "A legal precedent would make businesses aware of the need to address web accessibility."
Risk averse lawyers in the US are already advising clients to interpret the ADA in a cautious way and ensure that their websites are accessible – but Basrawi reckons the biggest incentive is still the buying power of disabled internet users. "It just makes business sense," he said.
By comparison, the position in the UK is clear. Private and public sector websites face accessibility obligations under the country's Disability Discrimination Act (DDA).
Struan Robertson, Editor of OUT-LAW and a Senior Associate with Pinsent Masons, said there is growing awareness of the legal obligation among companies in the UK. "The DDA seems to make board rooms take web accessibility more seriously than the ethical and commercial advantages in isolation," he said. "But while much work has still to be done to improve the accessibility of most UK sites, awareness of that need is the obvious first step – and it's unlikely that awareness in the UK would have reached its current level had our laws been ambiguous."
The complaint filed by the NFB in California Superior Court for Alameda County seeks to enjoin Target from continued violation of the California Civil Code. The suit asks the court to declare that Target is operating its website in a manner that discriminates against the blind and persons with visual disabilities in violation of California law, and seeks damages for the plaintiffs.
“I want to be able to shop online at Target.com just like anyone else,” said BJ Sexton. “I believe that millions of blind people like me can use the internet just as easily as do the sighted, if the website is accessible.”
OUT-LAW invited Target to comment on the lawsuit. Spokeswoman Lena Michaud provided the following statement: "Target has not yet been served with the lawsuit and therefore cannot provide comment on any specific allegations it may contain. However, we strive to make our goods and services available to all of our guests, including those with disabilities."
Retail and Consumer Brands Seminar