The class action, which was led by the National Federation of
the Blind (NFB), ended on Wednesday without any admission of
wrongdoing by Target.
According to the settlement agreement filed in the US District
Court for the Northern District of California, "there is no
admission or concession by Target … that Target.com is in any way
inaccessible".
The background
The NFB and a blind student, Bruce Sexton, Jr, sued Target in
2006, arguing that Target.com was designed in a way that was not
compatible with the assistive technology used by blind people. For
example, alt-text was missing from images, preventing
screen-reading software from describing the images to
visually-impaired users; and purchases could not be completed
without a mouse because keyboard controls did not work.
The application of US anti-discrimination laws to website
accessibility has been a subject of controversy and confusion for
many years. The litigation over Target.com became the
highest-profile test of those laws.
The settlement terms
The case settled with Target agreeing to set up a $6 million
fund that will be distributed among claimants who have attempted to
access Target.com with screen-reader software since 7th February
2003, while in California and while legally blind, and encountered
barriers on the site.
Each claimant will receive $3,500 per 'incident'. Individuals
can claim for up to two incidents. That sum will be reduced pro
rata if the number of claimants exceeds the funds
available.
In addition to the damages, Target has agreed to make certain
changes to its website by 28th February 2009, though the company
maintains that its site is already accessible. A table of 18
changes forms part of the settlement agreement.
Target's response
In a statement provided to OUT-LAW today, Target said: "Target
is committed to providing a simple and convenient online shopping
experience for all our guests, and we are confident our Target.com
Web site is fully accessible and complies with all applicable
laws."
The changes are being made, Target said, to win a seal of
approval from the NFB.
"We believe our Web site is fully accessible," said spokesperson
Julie Swiler. "Additional changes we will make by February 2009
will enable us to receive the NFB’s Non-visual Accessibility Web
Certification."
The company has also agreed to annual user testing over the next
three years "by 5 to 15 blind persons with varying skill levels"
and quarterly automated tests. Accessibility expert Jim Thatcher is
being commissioned to perform an additional annual assessment of
the site.
The legacy of the lawsuit
As a consequence of settling before a full trial, the case has
not set any binding legal precedent. But the NFB's lawyer told
OUT-LAW today that interim rulings in the case are significant and
will be influential on other courts.
Daniel F. Goldstein, a partner with the Baltimore,
Maryland-based law firm Brown, Goldstein & Levy welcomed the
result.
"This is a fair settlement," said Goldstein, who has represented
the NFB for more than 20 years. "There are several messages that
come out of this. First of all, other commercial retailers and
e-tailers have to think that if there was a real question about the
application of anti-discrimination laws to the internet that Target
might have fought."
"Not only did target settle but they agreed to damages that are
by far the largest damage awards ever in a disability rights case
involving blindness," he said. "This is a serious message to
everybody else that the law applies."
Analysis of the laws
The NFB accused Target of breaking three laws.
It said that Target broke the Americans with Disabilities Act
(ADA), a federal law that requires 'places of public accommodation'
to be accessible to disabled people. There is no judicial consensus
on the ADA's application to websites.
Rather than argue that Target.com is a place of public
accommodation, the NFB argued that the website is a service and
benefit offered by Target stores, which are themselves public
accommodations. A blind person might want to use the store locator
on Target.com before visiting a local store – but they would find
that an impossible challenge, argued the NFB.
Judge Marilyn Hall
Patel favoured that argument when addressing it in a
September 2006 ruling. "Plaintiffs' legal theory is that unequal
access to Target.com denies the blind the full enjoyment of the
goods and services offered at Target stores, which are places of
public accommodation," she wrote.
Judge Patel ruled that the ADA "applies to the services of a
place of public accommodation, not services in a place of public
accommodation." She said that the purpose of the ADA was "broader
than mere physical access".
But on Judge Patel's reasoning, the ADA would not apply to sites
like Amazon.com, eBay or Google. The Target.com site, she wrote,
"is heavily integrated with the brick-and-mortar stores and
operates in many ways as a gateway to the stores."
The NFB also challenged Target.com's compliance with a pair of
state laws, the Unruh Civil Rights Act and the California Disabled
Persons Act (DPA). Last year, Judge Patel issued an interim ruling (33-page
PDF) in which she wrote, "Plaintiffs present persuasive
authority to demonstrate that the Unruh Act and the DPA do not
require a nexus to the retail stores."
On Judge Patel's reasoning, therefore, a website that offers
services to internet users in California must be accessible to
disabled internet users in California. So a New York-based website
must either refuse to do business with everyone in California or
make its site accessible to disabled users.
Goldstein called that ruling "a land-breaking and critical
decision," because the reach of the internet would carry that
Californian law's impact nationwide. But Goldstein acknowledged
that the ruling has only "persuasive authority, not binding
authority" on other courts. "It's neither from the highest court
nor from the federal appeals court," he noted.
Goldstein still believes that the ADA applies to 'pure-play'
dot-coms like Amazon. "We still have the opportunity in other
jurisdictions to make the case that the internet is a public
place," he said. "The Supreme Court has referred to the internet as
a public forum for First Amendment [free speech] purposes and, as a
practical matter, to tell people that they're entitled to equal
access but not with respect to the internet is a cynically false
promise."
The NFB's reaction
Chris Danielson, a spokesman for the NFB, said the payout by
Target sends a clear message. "The courts take the issue of
accessibility seriously and it is in the best interests of everyone
to take note," he told OUT-LAW.
"The NFB certainly believes that the ADA applies to all
web-based businesses. Obviously not all courts have ruled that way.
It is our position that it should apply; a website is just another
way for a business to sell its services."
Danielson said he was not disappointed that the case did not end
with a binding precedent. "The fact is that they're making changes
to the website and that's really what we wanted. Are we unhappy
with the lack of precedent? We would have been perfectly happy if
Target had just made its website accessible in the first place,
without the need for litigation."
"Our goal is to make websites accessible," said Danielson. "If
that happens by a company approaching us or by us negotiating with
the company without litigation, that's just as valid. Litigation is
a strategy. It’s a strategy that we have on the table. But it’s a
strategy of last resort."
"We hope other online retailers will take accessibility
seriously and be proactive so we won't have to litigate," he
said.
