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.”
The legal arguments
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.
Congress and website accessibility
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.
The UK contrast
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."
Remedies
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.”
Target's reaction
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."
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