Blind Access

All across the country, holiday shoppers are clicking "add to cart" on their computer screens as they tick off items on their gift lists. But one group of shoppers--the visually impaired--complain that the doors to many Internet stores are closed to them. Through their advocacy group, the National Federation of the Blind (NFB), they've gone to court, contending Web sites not adapted for the blind violate the ADA and California disability laws.

In October a federal judge in San Francisco gave their cause a big boost. Judge Marilyn Hall Patel certified a nationwide ADA class action and a California subclass in a case the NFB brought against At the same time she denied Target's motion for summary judgment.

In the absence of any federal standards for Web site accessibility, other retailers are closely watching the case to see what the court will require. The case also could open a broad range of Web sites to disability discrimination lawsuits and become a touchstone on the question of how laws designed for the physical world should apply in cyberspace.

"Shopping itself is important--it's a major part of life for millions of people," says Larry Paradis, a disabilities rights lawyer who is representing NFB. "But the case and its precedent apply to much more--to online banking, education, travel and a whole range of online activities that have become components of modern life.

The thrust of the battle is whether or not the Web should be free from civil rights regulation."

National Access
The NFB approached Target in May 2005 asking the retailer to modify its Web site to accommodate screen readers, devices blind people use to access Internet content. The parties reportedly negotiated for six months but failed to reach an agreement. In February 2006 NFB filed suit alleging the inaccessibility of violates the ADA and two California laws, the Unruh Civil Rights Act and the Disabled Persons Act (DPA).

In its motion to dismiss, Target argued all three acts only require access to physical spaces by the disabled. The retailer contended inability to use the Web site didn't affect the plaintiffs' ability to access Target's brick-and-mortar stores.

Patel eventually drew a distinction between federal and California law. Citing a 9th Circuit decision in Weyer v. Twentieth Century Fox Film Corp. in which the court defined places of public accommodation under the ADA as physical spaces, the judge dismissed any ADA claims based on features not connected to the stores. But she reasoned an inaccessible Web site could violate the ADA if it impedes the ability of blind people to shop in the physical stores.

The judge said court declarations filed by prospective class members demonstrated a connection between Web site inaccessibility and the in-store shopping experience. Some cited increased expense and time incurred because they were unable to pre-shop on the Web site. Someone had to accompany them to the store, and the shopping trips took longer because they couldn't preview products online.

While Target argued this was merely an inconvenience not covered by the ADA, the judge drew a parallel with a wheelchair-bound person who has to be carried into a store because there is no ramp. That person would have access to the store, but the barriers would constitute an ADA violation, Patel said.

As a result the judge certified a class for the ADA claims consisting of "all legally blind individuals in the United States who have attempted to access and as a result have been denied access to the enjoyment of goods and services offered in Target stores." Target is seeking to appeal the class certification.

California Claims
The court opened up a much wider door for disability claims against Web sites under California disability laws. Patel ruled that broader language in the state statutes means there need be no connection at all between a Web site and physical retail store for a plaintiff to make a claim under the Unruh Act and the DPA.

"Neither statute is limited to restrictions on access to a place of public accommodation in the same way the ADA is limited," she wrote. The decision thus opens up claims under California disability law against Internet-only businesses. For the plaintiffs in the Target case, it also means they won't have to show that Web site inaccessibility affected their ability to shop in the stores.

"In our case it means that we don't have to parse through every page of the Web site and argue whether there is a nexus between this page or this component and the physical store," Paradis says.

The California ruling is also significant because the state laws provide for damages, while the ADA claim is limited to injunctive relief. According to Paradis, other cases certified as class actions under California civil rights law have resulted in judgments of between $3,000 and $4,000 for each instance of discrimination. He declined to speculate on how many instances of discrimination could be claimed.

"It's a challenge to determine that," he says. "What typically happens is that the parties reach a settlement."

Road Map for Plaintiffs
Regardless of whether the case is litigated or settled, it already has provided a road map for plaintiffs' attorneys to follow in cases against other retailers, virtual universities and travel sites, says Jeff Tanenbaum, partner in Nixon Peabody.

And because the ADA addresses access with respect to employment, such litigation could potentially extend beyond e-commerce companies. Web sites used for hiring and recruitment--as well as internal Web sites used for posting policies, benefits information and promotional opportunities--face similar liabilities, Tanenbaum says. He also notes the mobility impaired could make similar claims under disability laws.

In the face of a possible onslaught of ADA and state disability litigation and possible legislation broadening the ADA language to include Web site access, Web site owners should consider making changes proactively, says Helene Wasserman, partner in Ford & Harrison. "I would say, 'Become the model citizen. Get ahead of the curve. Get something in place,' " she says.

Senior Editor

Mary Swanton

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