Target was sued by the National Federation of the Blind (NFB)
and one of its blind members, Bruce Sexton, under a federal law,
the Americans with Disabilities Act (ADA), and also under two state
laws, the California Disabled Persons Act and the California Unruh
Civil Rights Act.
The NFB and Sexton argue that Target.com is not accessible to
blind internet users, in breach of these federal and state laws.
They complained that images on the site were missing alternative
text upon which blind users rely; keyboard controls do not work,
meaning users must be able to work a mouse; and headings are
missing that are needed for navigation.
US District Judge Marilyn Hall Patel in the Court for the
Northern District of California had previously ruled that the
inaccessibility of Target.com impeded full and equal enjoyment of
goods and services offered in Target stores pursuant to the ADA.
She has now ruled that the case is eligible for class action status
and she rejected an effort by Target to have the case thrown
out.
The President of the NFB, Dr Marc Maurer, said last week: “This
is a tremendous step forward for blind people throughout the
country who for too long have been denied equal access to the
Internet economy. All e-commerce businesses should take note of
this decision and immediately take steps to open their doors to the
blind.”
Key questions in the lawsuit remain to be resolved, though. A UK
lawyer said that these will be vital in determining the ruling's
impact on other businesses in the US.
Improvements at Target.com
Since the case began, Target has made improvements to the site's
accessibility. Target said that because it had made these changes,
the claims against it are now "moot". Judge Patel disagreed. While
it was accepted that accessibility had improved, making it "more
likely that a blind user could complete a transaction," according
to an expert for the NFB, it was noted that problems remain. Judge
Patel wrote, "even the most favorable understanding of these
modifications would suggest that only one aspect of the claims has
been fully addressed: keyboard accessibility."
"Moreover, the continuous addition of new pages to Target.com
argues against a finding of mootness," she wrote.
State laws
Noting that the language of the California state laws is broader
than that of the ADA, Judge Patel found that websites should be
covered. "[The] Unruh Act and the DPA reach Target.com as a kind of
business establishment and an accommodation, advantage, facility
and privilege of a place of public accommodation, respectively. No
nexus to the physical stores need be shown," she said.
The Unruh Act provides that all persons in California are free
and equal, and no matter what their disability "are entitled to the
full and equal accommodations, advantages, facilities, privileges,
or services in all business establishments of every kind
whatsoever."
The DPA guarantees that individuals with disabilities are
entitled to full and equal access to various listed places, "and
other places to which the general public is invited".
Judge Patel defined the class action as eligible to represent
"all legally blind individuals in California who have attempted to
access Target.com" under the Unruh Act and the DPA.
However, key questions remain on each state law.
Previous cases have suggested that the Unruh Act only applies to
intentional discrimination unless the case is premised on an ADA
violation. The NFB contends that disability discrimination is
characterised by inaction, arguing that the previous ruling that
saw a need to prove intention as inappropriate. Judge Patel
sympathised: "the legislative history of the [Unruh] Act and its
subsequent construction tilts in favor of [the NFB's] preferred
reading," she wrote. But she stopped short of ruling definitively
on the need to prove intention or whether that intent existed in
this case.
Another key question that remains unanswered is the meaning of
"full and equal access" under the DPA in the context of a website.
What that means when setting the applicable standards "is still an
open question," wrote Patel.
Federal law
The ADA says that places of public accommodation must be
accessible to the disabled. It lists examples, but websites are not
mentioned. Consequently the NFB's original claim under the ADA was
a narrow one: it identifies Target.com not as a place of public
accommodation but as a service and benefit offered by Target stores
in California. It is the physical stores that are places of public
accommodation.
So while the NFB argues that a blind person's inability to place
an order at Target.com is a breach of the state laws, its claim
under the ADA is unusual. It says that the site's store locator,
which helps shoppers to find a local store and opening hours, is
not accessible to blind users. Blind users cannot locate discount
coupons on the site, designed for printing and redeeming in-store,
the NFB argues.
Sexton had explained to the court that he visits several stores'
websites before shopping, something the court referred to as
'pre-shopping'. However, Sexton did not establish how his
difficulties with Target.com have impeded his access to the goods
and services in the store, Patel noted. "He states only that he has
been 'unable to use Target.com for th[e] purpose' of pre-shopping
and that he has been unable to use the weekly advertisements on
Target.com for use in the stores," she wrote, pointing out that he
had still reached the stores without incurring increased
expense.
Accordingly, Target won a motion to dismiss Sexton's ADA claim,
though Patel ruled that another plaintiff can be substituted on
this claim, provided one is found within 30 days of the September
28th court order.
Class members "who have been deterred from shopping at Target
altogether [by virtue of the inaccessibility of Target.com] have
standing to proceed on their ADA claims," wrote Patel. It can also
include those who incurred increased time and cost as a consequence
of being unable to pre-shop. Patel noted that pre-shopping is an
important aspect of in-store accessibility for blind shoppers.
Conclusion
Judge Patel concluded: "The nationwide class consists of all
legally blind individuals in the United States who have attempted
to access Target.com and as a result have been denied access to the
enjoyment of goods and services offered in Target stores. The
California subclass includes all legally blind individuals in
California who have attempted to access Target.com, for plaintiffs’
claims arising under the California Unruh Civil Rights Act,
California Civil Code … and the Disabled Persons Act, California
Civil Code…"
Struan Robertson, a technology lawyer with Pinsent Masons and
editor of OUT-LAW.COM, said the latest ruling could have a
significant impact on web businesses in the US.
"We've got a really simple anti-discrimination law in the UK
that basically means all sites must be accessible to disabled
users, but America has never had such a straightforward rule," he
said. "There has always been confusion about the duty that US
websites face and this case could finally change that."
If the NFB claim succeeds against Target on state laws, there is
a strong chance that many other businesses will be affected, he
said. "The California laws could have the leverage to force
businesses across America to build accessible sites, whether
they're pure-play dot-coms or businesses that also offer high
street stores," he said.
