The WWW and ADA
Web Access for the disabled under the ADA: What the settlement of the Target case means
by Gregory F. Hurley, Principal Shareholder, Greenberg Traurig
A Federal Court in California has found that Target can be sued under the Americans with Disabilities Act (ADA) for having a Web page that is inaccessible to individuals with visual impairments. In National Federation of the Blind (NFB) v. Target Corporation, the District Court in the Northern District of California determined that certain Web sites were subject to the ADA when it allowed a lawsuit against Target.com to survive a motion to dismiss. This decision marks a dramatic shift and requires Web sites with a nexus to physical stores to comply with the ADA, much like brick and mortar facilities. Recently Target settled with the NFB. The settlement was widely published and it is certain to result in more ADA claims against on line retailers.
The ADA and its regulations were adopted in 1990 before anyone considered “accessible” Web pages. Today protocols for designing an accessible Web site use "alternative text" (invisible code embedded beneath the graphics). A visually impaired individual can use screen reader software that vocalizes the alternative text and describes the content of the webpage. Many of these readers convert the screen text to something either audible or tactile. For example, if there is a button to push to advance to the next screen, the screen readers say "next button". If presented with a form in which to enter a name and address, the screen reader will say "name" in the name field, or "combo box" to move through the choices until the numeric or alpha abbreviation desired is found. Some of these protocols were missing from Target’s online retail Web pages resulting in the suit by the NFB.
Terms of Target’s settlement
Target has agreed to pay $6 million and revamp its Web site to settle a lawsuit brought by the National Federation of the Blind. It will make its site friendlier to vision impaired people who access the Web via screen readers. Among other changes, the site will include more alt text tags along with images. These tags are invisible to users, but screen readers rely on them to convert the contents of a page into speech. Target also will make it easier to navigate its site using just a keyboard, rather than a mouse. The company will implement the changes by next February. In addition, California residents who unsuccessfully attempted to use Target's site can claim $3,500 in damages—or, if there was more than one incident, $7,000 total. California has an estimated 10,000 blind people, while the country overall has around 1.3 million, according to a spokesperson for the NFB.
Target created and agreed to comply with its own Target Online Assistive Technology Guidelines. We expect that with the Target settlement there will be increased demand for Web pages that allow for navigation by keyboard and online image to speech conversion for Web pages.
Background
Much of the current litigation over Web accessibility derives from the mandate that federal agencies and their vendors make internet access accessible. Under Section 508 (29 U.S.C. 794d), agencies must give disabled employees and members of the public access to information that is comparable to the access available to others. The law applies to all federal agencies when they develop, procure, maintain or use electronic and information technology. Several states are considering legislation based on the Federal Section 508 that will expands these requirements to state agencies and state contractors. (See for example, Cal.Gov.Code §11135(d)(1)(2).)
In recent years, the courts have split as to whether "places of public accommodation" as defined by the ADA must be actual, physical places or whether "places of public accommodation" has a more expansive meaning, including virtual facilities. The Third, Sixth and Ninth Circuits have held that places of public accommodation are limited to actual physical places. [See Parker v. Metropolitan Life Insurance Co., 121 F.3d 1006 (6th Cir. 1997) holding that "the clear connotation of the words in 51218(7) is that a public accommodation is a physical place"); Ford v. Schering- Plough Corp., 145 F.3d 601 (3rd Cir. 1998) (holding that "the plain meaning of Title III is that a public accommodation is a place"); and Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104 (9th Cir. 2000) (holding that places of public accommodation are actual, physical places)]. The First and Seventh Circuits have indicated that places of physical accommodation are more than actual physical structures. [See Carparts Distribution Center, Inc. v. Automotive Wholesalers Assoc. of New England, Inc., 37 F.3d 12 (1st Cir. 1994) (holding that public accommodations encompass more than actual physical structures); Doe v. Mutual of Omaha Ins. Co., 179 F.3d 557 (7th Cir. 1999) (noting in dicta that a place of public accommodation encompasses facilities open to the public in both physical and electronic space, including Web sites.]
National Federation of the Blind v. Target Corp
In National Federation of the Blind v. Target Corporation, Case No. C 0601802 MHP (N.D. Cal. Sep. 6, 2006), the Plaintiffs alleged that Target.com lacked features that would make it compatible with screen reader software; hence it was inaccessible to the blind. Defendant Target Corporation, claimed that Target.com is not a "place of public accommodation" within the meaning of the ADA, therefore the lawsuit should be dismissed. Specifically, Target claimed that the Plaintiffs failed to state a case because they did not allege that any individual was denied access to a physical, or "brick and mortar" store. Previous Ninth Circuit law required a plaintiff to allege a "nexus" between the challenged service and the place of public accommodation. However NFB argued that unequal access to the Web site Target.com denied the blind full enjoyment of the goods and services offered at the "brick and mortar" target stores, which are places of public accommodation.
The court unequivocally rejected the argument that the ADA applies only to services in a physical place. The court observed that the statute applies by its literal language, to services of any place of public accommodation and therefore applies to online goods and services as well. The court did, however, reason that the discrimination from the online services still must in some way deny physical access to a store.
The District Court’s opinion in Target would appear to be in conflict with the Ninth Circuit’s holding in Weyer v. Twentieth Century Fox Film Corp., 198 F.3d 1104 (9th Cir. 2000) (holding that places of public accommodation are actual, physical places). However, with the settlement of the Target case there will be no appeal to resolve this conflict. ADA plaintiffs are already claiming that the Target settlement represents a business’s obligations for providing access for all web pages—not just Web pages that support commerce or are used for sales.
What to do
There are several great resources for evaluating the accessibility of your Web portals. For information on the Federal Section 508 requirements see www.section508.gov. For information and a survey of state laws see www.ittatc.org . For the details on creating accessible web pages see the Web Content Accessibility Guidelines or WCAG (www.w3.org ). The most recent WCAG Guidelines were published for comment in April of 2008.
There has been criticism that these new accessibility guidelines have not been properly vetted for coordination with security and privacy laws and practices. This can put the online business in a difficult position facing class actions for “violations” of the ADA or facing class actions for “violations” on the myriad privacy requirements for online commerce (for example, the Fair Credit Reporting Act, and FACTA).
Many retailers have found that upgrading their Wb pages to meet the newest WCAG standards can be prohibitively expensive or disable the sales procedures. We have been drafting agreements on Web accessibility in class settlements for several of our clients facing these upgrade problems. Below is part of a recent class settlement for a national retailer we represent. This retailer could not bring their current on line commerce cite into immediate compliance with the current guidelines without substantial time and expense. We got the Court’s approval for the following phased compliance:
“Maintenance of Internet Website located at URL www.XXXXXX.com. Within one year of the Final Judgment being entered by the Court, Xxxxx.com will be modified to comply with (i) WCAG Priority 1 and (ii) WCAG Priority 2 Guidelines 3.5 (HTML headings) and 12.4 (explicit form labels). If a substantial alteration to the Web site architecture of Xxxxx.com occurs, then the website will comply with WCAG Priorities 1 and 2.”
The NFB has committed to suing businesses whose Web pages they believe do not provide full access. Given the attention that the recent Target settlement has gotten and the amount of money that settlement made available to class members and their counsel, more class litigation is inevitable. It is incumbent on business to review their Web pages and online commerce to confirm at least the basic elements of accessibility for individuals with visual impairments. Even if immediate compliance with the most recent WCAG standards is not possible a commitment and timeline by the business to improve web access can help defeat these claims.
Mr. Hurley is a principal shareholder and chair of the litigation department for Greenberg Traurig’s Orange County office. He can be reached at Hurleyg@GTLaw.com or 949.732. 6614. He specializes in defending class action claims under the ADA and state civil rights laws. He is a 2009 Southern California Super Lawyer and was named one Southern California’s “Best Lawyers” by the L.A. Times. Greenberg Traurig is an international law firm with more than 1,700 lawyers in 33 U.S. and international offices.
