Bruce Sexton is a student at the University of California-Berkeley. Like other students, Sexton shops at national discount retail chains. But unlike most other students, he's suing one of them.
As president of the California Association of Blind Students, Sexton decided to speak up on behalf of California's blind citizens and fight what he feels is an injustice against the visually impaired. The target of his ire is retail giant Target. Sexton, along with the National Federation of the Blind and the National Federation of the Blind of California, accuse the Minneapolis-based company of discriminating against the visually impaired because its Web site is inaccessible to them.
"Both federal and state laws are clear that any good or service of a place of public accommodation is required to be made accessible on equal terms to people with disabilities," says Josh Konecky, a partner at Schneider & Wallace, who is representing the plaintiffs in the case.
Filed Feb. 7 in Alameda County Superior Court, the case brings into question whether state and federal civil rights and disability rights laws apply to the Internet, and if so, what companies need to do to make their sites accessible.
"This case really is the first shot across the bow on this issue," says Jeffrey Tanenbaum, a partner at Nixon Peabody in San Francisco. "These issues have been raised in other cases in a peripheral way, but this is the first time we are seeing a class action on this subject."
The class, which plaintiffs' attorneys claim could include 600,000 people, alleges Target is violating two California civil rights laws--the California Unruh Civil Rights Act and the California Disabled Persons Act.
The Unruh Civil Rights Act guarantees equal access for people with disabilities to the "accommodations, advantages, facilities, privileges and services of all business establishments," while the Disabled Persons Act guarantees full and equal access for people with disabilities to all public places. Provisions of both laws make any violations of the American with Disabilities Act (ADA) violations of California law. Unlike the ADA, the two state laws delineate remedies for injured parties. Damages in the Target case could cost the retailer millions of dollars.
"You don't get any kind of damages in federal court," says Rebecca Hull, a partner at Sedgwick, Detert, Moran & Arnold in San Francisco. "Obviously one of the goals of any lawsuit like this is to find some sort of leverage by which to persuade the defendant that they should resolve it somehow."
Although the Target suit specifically alleges violation of California state laws, which are broader in scope than the ADA, experts agree that this suit affects companies nationwide.
"The ADA would be a potential basis for this sort of claim anywhere in the country," Tanenbaum says.
In addition, any company in the country that has a Web site that sells merchandise could be potentially liable under the California laws if it does not provide means for the blind to access and navigate it.
"Even a company that has a single brick-and-mortar location in New Jersey that happens to have a Web site that would allow people to shop in other states is potentially subject to this type of suit," Tanenbaum says.
Because the case is still pending, it is unclear how far-reaching the court's decision will be. But experts agree that, although Target is likely to settle, the plaintiffs have a very strong claim.
"It's a fairly strong argument to say Target's Web site is really no different from the brick and mortar store," says George Howard, a partner at Pillsbury Winthrop Shaw Pittman in San Diego. "It's going to be tough to defend because the Web site has the same function as the store."
To avoid such suits under state laws or the ADA, in-house counsel should carefully scrutinize current civil rights laws that protect the disabled.
"You have to ask yourself, 'Is this a public place or a public accommodation?'" Howard says. "Probably the answer is yes, but we don't know."
Of course, another factor to consider before a company decides to make its Web site accessible to the blind is how much such an accommodation would cost. In the Target case, plaintiffs are asking the company to implant invisible alt-text into graphics so that screen readers that the blind use to navigate the Internet can read out what is pictured. Also, plaintiffs want Target to use coding that ensures users can navigate all of the site's functions without a mouse. Konecky says these solutions are "not expensive or difficult at all."
Regardless of the threat of litigation, what will really drive most companies to make their sites accessible is the benefit of being able to reach the widest customer base possible.
"You can look at the Web site as an additional doorway to the company," Tanenbaum says. "The question is, how do you open the door all the way for everyone? And often without too much difficulty, you can improve your door."