Editor’s note: Linda Markus Daniels is a founder of and principal in the Research Triangle Park law firm of Daniels Daniels & Verdonik, P.A.
RESEARCH TRIANGLE PARK, N.C. – It wasn’t so long ago that every proposal which went out and every contract for custom programming required any software delivered to be “Year 2000 compliant.” In fact, from time to time that requirement still appears in contracts. Now, however, we may begin to see a new requirement and a rush to update current websites…this time to meet a legal obligation rather than a business need.
Earlier this year, a lawsuit was filed against Target Corporation by the National Federation for the Blind (“NFB”). On September 8, a federal judge in San Francisco ruled that the lawsuit had adequate merit to proceed to trial. The claim is that the Americans with Disabilities Act (“ADA”) requires retailers (and all other public facilities) to make their websites accessible to the blind.
The Complaint In The Case
Many devices exist to assist disabled persons to be able to use all types of equipment and facilities that they could not otherwise enjoy. For example, there are text telephones which allow hearing impaired to communicate over the telephone and hand controls/brakes which allow persons without feet to operate motor vehicles. More recently, visually impaired persons have been able to purchase screen-reading software which provides speech technology when reading certain screens on specified operating systems and the Internet.
In National Federation for the Blind, et. al. vs. Target Corporation, those bringing the lawsuit claim that Target’s website fails to provide certain alt-text or invisible code that can be embedded under graphics to allow screen readers to detect and vocalize a description of the image. The complaint further alleges that the site lacks image maps and other prompting information which should allow easy movement through the site. Further, the checkout process requires use of a mouse, which is not possible since a blind person cannot determine where the mouse pointer is on the screen.
The complaint further alleges that there are well-established standards for making websites available to the blind. It points out that the Web Accessibility Initiative, a project of the World Wide Web Consortium, has developed guidelines for this which are readily available. If such guidelines are followed, NFB alleges that the screen readers will function to allow adequate access and navigability.
Finally, the complaint concludes that the failure to follow these standards creates access barriers for blind users of the Target.com site. As a result, it is alleged, Target is in violation of the ADA, as well as of the California Unrah Civil Rights Act and the Californian Disabled Persons Act.
Target’s response to the claim is quite simple: the ADA does not apply to websites. Target argues that while it is correct the ADA requires accessibility to all places of public accommodation, this requirement is intended to apply to physical accommodations…which a website is not. The legislative history of the act and the regulations deal with issues such as ramps, braille on signage and guide dogs; there is clearly no mention of cyberspace.
Target also argues that to the extent the claims relate to violation of the California statutes on accessibility, such application violates the Commerce Clause of the U.S. Constitution by imposing this obligation on a website available nationwide.
In 1990, Congress passed the Americans with Disabilities Act (ADA). While most people associate the act with employers having to make certain accommodations for handicapped employees, or with beeps as floors change in elevators or lights change at crosswalks, the Act is much further reaching than that. With respect to public establishments the act provides:
“No individual shall be discriminated against on the basis of disability on the full and equal enjoyment of goods, services, facilities, privileges, advantages or accommodations of any place of public accommodation by any person who owns, leases or operates a place of public accommodation.”
The complaint alleges that Target stores fall within the above definition (which it would be difficult to dispute) and that Target.com is a service, privilege or advantage of Target Stores and is an integrated part of the stores. As such, the complaint concludes, it is unlawful under the ADA to discriminate against handicapped users of the website, in this case those who are blind.
Under the ADA public accommodations are required to make reasonable modifications in policies, practices or procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages or accommodations to individuals with disabilities . . . to ensure that no individual with a disability is excluded, denied service, segregated or otherwise treated differently than other individuals . . .
In 2000 American Online settled a case brought against it by the NFB, resulting in better web services for the visually impaired. In 2004 Priceline.com and Ramada.com agreed to make their web pages easier for the visually impaired to use as part of a settlement with the New York Attorney General.
On the other side, a federal appeals court in Florida has held that web publishers are not required to comply with the ADA. In a case brought by Access Now, a disability rights organization, against Southwest Airlines, the court found that the ADA applies only to physical spaces, such as restaurants and movie theaters, and not to the Internet. The lower disctrict court held that “To expand the ADA to cover ‘virtual’ spaces would be to create new rights without well-defined standards, . . . The plain and unambiguous language of the statute and relevant regulations does not include Internet Web sites.”
What Happens Now?
This is clearly a case headed to the U.S. Supreme Court on both issues raised by Target unless Congress elects to amend the ADA during the several year period before this case would reach the Supreme Court. The application of the ADA to websites and other “accommodations” that did not exist or were not contemplated at the time the Act was passed will require final interpretation by either the Supreme Court or Congress. The second issue is of equal importance as website providers try to determine exactly what state laws govern their websites that are accessed nationally and internationally.
In the interim, the NFB spokesman has indicated that it intends to bring other lawsuits (presumably in California and not Florida) against other online retailer and websites. How far will the NFB go to put pressure on businesses? Will it try to also make example of ISPs or hosting services under the theory that they are leasing or operating a place of public accommodation? Will the screen reader software be improved such that all of this is a moot issue?
These questions will clearly play themselves out over many years, but during that period will every new proposal and website and maintenance contract require the sites be accessible to the blind? Is this the new “Year 2000 Complaint” requirement? Consultants are already advertising to identify and fix your website so that it meets all the standards. Perhaps the ADA claim and the perceived need to address the issue is the new route to full employment by programmers.
Daniels Daniels & Verdonik, P.A. has been serving the legal needs of entrepreneurial and high technology clients for more than 20 years. Linda Markus Daniels concentrates her practice in the representation of entrepreneurial and technology-based businesses, focusing on corporate, technology and international matters. Comments or questions can be sent to firstname.lastname@example.org