This article originally appeared in Bar Notes, December 2006.
A recent decision from the United States District Court in Northern California may require law firms to make their websites accessible to the blind.
In National Federation of the Blind, et al. v. Target Corporation, 2006 U.S. Dist. Lexis 63591, the plaintiff, the National Federation of the Blind, the National Federation of the Blind of California, on behalf of all of their members, and Bruce F. Sexton, on behalf of himself and all others similarly situated, brought an action against Target Corporation alleging that Target’s website, Target.com, is inaccessible to the blind and thus violative of federal and state laws prohibiting discrimination against the disabled.
Target brought a motion to dismiss the complaint arguing, as more detailed below, that federal and state laws regarding discrimination against the disabled only relate to public accommodations, not services available through the internet. United States District Court Judge Marilyn Patel disagreed with Target’s interpretation of both federal and California law and denied the motion to dismiss.
Like almost every retail outlet in America, Target operates its own website, Target.com, for the purpose of advertising its products as well as giving individuals an opportunity to buy its products online. The Plaintiffs sued Target under the Americans with Disabilities Act, 42 U.S.C. Section 12182 (“ADA”), the Unruh Civil Rights Act, Cal. Civ. Code Section 51 (the “Unruh Act”), and the Disabled Persons Act, Cal. Civ. Code Section 54.1 (“DPA”). Plaintiffs sought not only declaratory and monetary relief, they also sought a mandatory injunction requiring Target to modify its website so it could be accessible to the blind.
Rendering a website accessible to the blind can involve a variety of steps. For example, one element is to embed “alternative text” beneath the graphics. This text permits the blind user to obtain a description of a picture, which can be read by screen reader software that vocalizes the text. There are other more substantive steps that may also require the assistance of a qualified computer technician.
The Court analyzed the applicability of the ADA to Target’s website. The ADA provides, in pertinent part, that:
“[N]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to) or operates a place of public accommodation.”
Discrimination, under the ADA, involves the denial to the disabled person the opportunity to participate in programs or services, and providing the disabled with separate, but unequal, goods or services.
The first argument raised by Target was whether Target.com is a place of public accommodation subject to the provisions of the ADA. In support of its position that Target.com was not subject to the ADA, Target argued that:
- The ADA did not apply to “off-site” discrimination
- The ADA would only be implicated if the plaintiffs were denied physical access to the actual Target stores
- The ADA does not require the obligation to provide auxiliary aids or services if doing so would fundamentally change the nature of the good or service, or result in an undue burden.
The Court addressed each of these concerns and found that Target got the wrong end of the shopping cart for all of them.
First, the Court noted that the ADA applies to “services of a place of public accommodation, not services in a place of public accommodation.” (See 42 U.S.C. Section 12182(a).) The Court cited to an Eleventh Circuit case entitled Rendon v. Valleycrest Prod., Ltd., 294 F.3d 1279, 1280-81 (11th Cir. 2002) (court held the process for selecting contestants for “Who Wants to Be A Millionaire” that screened out disabled persons was actionable under the ADA even though the screening process occurred outside the premises of a public accommodation (the game show set).)
Second, with reference to physical access, the Court rejected what it found to be a very narrow interpretation of the ADA. The plaintiffs alleged that the inaccessibility of Target.com denied the blind the ability to enjoy the services of the Target stores. The Court found that the ADA protected the rights of the disabled to “the enjoyment of goods, services, facilities or privileges” that the place of accommodation provides.
Third, with reference to the third prong, whether access to the website would fundamentally change the nature of the good or service or result in undue burden, the Court also rejected Target’s contentions, at least at the motion to dismiss stage. The Court held that whether Target could provide some other accommodation (such as telephone help) could be an affirmative defense raised by Target within its answer, but not by way of a motion to dismiss.
The Court concluded that “to the extent that plaintiffs allege that the inaccessibility of Target.com impedes the full and equal enjoyment of goods and services offered in Target stores, the plaintiffs state a claim and the motion to dismiss is denied. To the extent that Target.com offers information and services unconnected to Target stores, which do not affect the enjoyment of goods and services offered in Target stores, the plaintiffs fail to state a claim under Title III of the ADA.”
The Court briefly addressed both the Unruh Act and DPA claim by finding that under both, that a violation of the ADA is, per se, a violation of both the Unruh Act and the DPA. Thus, the Court would deny motions to dismiss filed pursuant to both Acts.
Finally, the Court spent some time discussing the applicability of the Dormant Commerce Clause. For those of you who may not remember back to Constitutional Law I, the Commerce Clause precludes a state from regulating commerce that takes place wholly outside of the State’s borders, even if the commerce has effects within the State. Without reviewing the Court’s exhaustive analysis on the issue, the Court held that it could not, at the motion to dismiss stage, find that the suggested interpretation of the ADA violated the commerce clause. The Court held that if Target was required to create a website specially designed for California residents, this would not necessarily invalidate the ADA under the Commerce Clause.
Under the Dormant Commerce Clause, Target argued that California cannot regulate Target.com because “the internet requires uniform, national regulations.” Here, the Court noted the absence of any congressional action on the subject and held that “the lack of congressional action explicitly addressing accessibility requirements for private websites should not be construed to bar the extension of the protections of California statutes to these websites.” The Court then, in football terms, punted; holding that the commerce clause was not triggered at this “preliminary stage”.
While not granting the motion to dismiss, the Court would not go so far as to require Target.com to modify its website through a preliminary injunction. Rather, the Court held that the disparate factual evidence presented (the court was presented with declarations from disabled individuals who differed on the accessibility of the Target website), and that a mandatory injunction required a clear finding that the website was inaccessible.
So, what does Target, Marshalls, Subway, Dominos, and any other business that sells goods or services on the Internet do in the aftermath of this decision? Almost certainly, the issue will be appealed to the Ninth Circuit (and perhaps to the United States Supreme Court). Currently, the decision is not published, and thus not precedent, which could change at any time.
While website review and compliance will certainly cost a little money on the front end, fixing the situation up front will be substantially less than the cost of litigation for ADA violations that carry $4,000 per violation fines, plus attorney’s fees. The costs of the fix appear to be a better deal than being a defendant on the wrong end of an ADA lawsuit.