Out-Law News | 29 Aug 2008 | 7:37 pm | 5 min. read
The class action, which was led by the National Federation of the Blind (NFB), ended on Wednesday without any admission of wrongdoing by Target.
According to the settlement agreement filed in the US District Court for the Northern District of California, "there is no admission or concession by Target … that Target.com is in any way inaccessible".
The NFB and a blind student, Bruce Sexton, Jr, sued Target in 2006, arguing that Target.com was designed in a way that was not compatible with the assistive technology used by blind people. For example, alt-text was missing from images, preventing screen-reading software from describing the images to visually-impaired users; and purchases could not be completed without a mouse because keyboard controls did not work.
The application of US anti-discrimination laws to website accessibility has been a subject of controversy and confusion for many years. The litigation over Target.com became the highest-profile test of those laws.
The case settled with Target agreeing to set up a $6 million fund that will be distributed among claimants who have attempted to access Target.com with screen-reader software since 7th February 2003, while in California and while legally blind, and encountered barriers on the site.
Each claimant will receive $3,500 per 'incident'. Individuals can claim for up to two incidents. That sum will be reduced pro rata if the number of claimants exceeds the funds available.
In addition to the damages, Target has agreed to make certain changes to its website by 28th February 2009, though the company maintains that its site is already accessible. A table of 18 changes forms part of the settlement agreement.
In a statement provided to OUT-LAW today, Target said: "Target is committed to providing a simple and convenient online shopping experience for all our guests, and we are confident our Target.com Web site is fully accessible and complies with all applicable laws."
The changes are being made, Target said, to win a seal of approval from the NFB.
"We believe our Web site is fully accessible," said spokesperson Julie Swiler. "Additional changes we will make by February 2009 will enable us to receive the NFB’s Non-visual Accessibility Web Certification."
The company has also agreed to annual user testing over the next three years "by 5 to 15 blind persons with varying skill levels" and quarterly automated tests. Accessibility expert Jim Thatcher is being commissioned to perform an additional annual assessment of the site.
As a consequence of settling before a full trial, the case has not set any binding legal precedent. But the NFB's lawyer told OUT-LAW today that interim rulings in the case are significant and will be influential on other courts.
Daniel F. Goldstein, a partner with the Baltimore, Maryland-based law firm Brown, Goldstein & Levy welcomed the result.
"This is a fair settlement," said Goldstein, who has represented the NFB for more than 20 years. "There are several messages that come out of this. First of all, other commercial retailers and e-tailers have to think that if there was a real question about the application of anti-discrimination laws to the internet that Target might have fought."
"Not only did target settle but they agreed to damages that are by far the largest damage awards ever in a disability rights case involving blindness," he said. "This is a serious message to everybody else that the law applies."
The NFB accused Target of breaking three laws.
It said that Target broke the Americans with Disabilities Act (ADA), a federal law that requires 'places of public accommodation' to be accessible to disabled people. There is no judicial consensus on the ADA's application to websites.
Rather than argue that Target.com is a place of public accommodation, the NFB argued that the website is a service and benefit offered by Target stores, which are themselves public accommodations. A blind person might want to use the store locator on Target.com before visiting a local store – but they would find that an impossible challenge, argued the NFB.
Judge Marilyn Hall Patel favoured that argument when addressing it in a September 2006 ruling. "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," she wrote.
Judge Patel ruled that the ADA "applies to the services of a place of public accommodation, not services in a place of public accommodation." She said that the purpose of the ADA was "broader than mere physical access".
But on Judge Patel's reasoning, the ADA would not apply to sites like Amazon.com, eBay or Google. The Target.com site, she wrote, "is heavily integrated with the brick-and-mortar stores and operates in many ways as a gateway to the stores."
The NFB also challenged Target.com's compliance with a pair of state laws, the Unruh Civil Rights Act and the California Disabled Persons Act (DPA). Last year, Judge Patel issued an interim ruling (33-page PDF) in which she wrote, "Plaintiffs present persuasive authority to demonstrate that the Unruh Act and the DPA do not require a nexus to the retail stores."
On Judge Patel's reasoning, therefore, a website that offers services to internet users in California must be accessible to disabled internet users in California. So a New York-based website must either refuse to do business with everyone in California or make its site accessible to disabled users.
Goldstein called that ruling "a land-breaking and critical decision," because the reach of the internet would carry that Californian law's impact nationwide. But Goldstein acknowledged that the ruling has only "persuasive authority, not binding authority" on other courts. "It's neither from the highest court nor from the federal appeals court," he noted.
Goldstein still believes that the ADA applies to 'pure-play' dot-coms like Amazon. "We still have the opportunity in other jurisdictions to make the case that the internet is a public place," he said. "The Supreme Court has referred to the internet as a public forum for First Amendment [free speech] purposes and, as a practical matter, to tell people that they're entitled to equal access but not with respect to the internet is a cynically false promise."
Chris Danielson, a spokesman for the NFB, said the payout by Target sends a clear message. "The courts take the issue of accessibility seriously and it is in the best interests of everyone to take note," he told OUT-LAW.
"The NFB certainly believes that the ADA applies to all web-based businesses. Obviously not all courts have ruled that way. It is our position that it should apply; a website is just another way for a business to sell its services."
Danielson said he was not disappointed that the case did not end with a binding precedent. "The fact is that they're making changes to the website and that's really what we wanted. Are we unhappy with the lack of precedent? We would have been perfectly happy if Target had just made its website accessible in the first place, without the need for litigation."
"Our goal is to make websites accessible," said Danielson. "If that happens by a company approaching us or by us negotiating with the company without litigation, that's just as valid. Litigation is a strategy. It’s a strategy that we have on the table. But it’s a strategy of last resort."
"We hope other online retailers will take accessibility seriously and be proactive so we won't have to litigate," he said.