[technology] Blind Blocking the Blind Part 2
( Related Article)
Does the Americans with Disabilities Act Require that Commercial Websites Be Accessible to the Blind?
A Recent Court Ruling Suggests the Answer Is Yes, But Only for Certain Sites
Anita Ramasastry
http://practice.findlaw.com/cyberlaw-100306.html
October 3, 2006
Just last month, U.S. District Judge Marilyn Hall Patel -- of the San Francisco-based U.S. District Court for the North District of California - ruled that the Americans with Disabilities Act (ADA) applies to some commercial websites. The holding was the first of its kind.
Unless Judge Patel's ruling is reversed on appeal, its upshot will likely be that many retail websites - in particular, those intrinsically linked to companies' brick-and-mortar operations - will have to start complying with the ADA.
However, because Judge Patel's decision did not reach web-only retailers, it may be necessary for Congress to revisit the ADA if it wishes to ensure that all web retailers make their sites accessible.
Given that there are some very significant web-only sellers - eBay and Amazon.com come immediately to mind - Congress should seriously consider this option. (Some groups have lobbied Congress to modify the ADA to explicitly cover the Internet, but the law has yet to be changed.)
The Lawsuit That Prompted Judge Patel's Ruling
The ADA suit, filed in February of this year, was brought by Bruce Sexton, Jr., a blind University of California-Berkeley student. In conjunction with the National Federation of the Blind (NFB), Sexton alleged that Target's website violates the ADA because it is not fully navigable by the visually-impaired. (Sexton has also sought class action status on behalf of those similarly-situated.)
In particular, Sexton and the NFB say that Target.com lacks properly embedded "alt" tags - which are used to provide brief text descriptions of web page components. Without such tags, computerized screen readers cannot describe aloud webpage contents to visually-impaired computer users. The plaintiffs say Target.com's alt tags are sometimes misleading, and sometimes simply missing.
Target's Argument: The Website Is Not a "Place of Public Accommodation"
Target sought to dismiss the suit on the ground that the ADA did not apply. But Judge Patel disagreed. She reasoned that "the 'ordinary meaning' of the ADA's prohibition against discrimination in the enjoyment of goods, services, facilities or privileges, is that whatever goods or services the place provides, it cannot discriminate on the basis of disability in providing enjoyment of those goods and services." (Emphasis added.)
Target's argument was that its website was not a "place of public accommodation" that the ADA requires to be accessible. Currently, the ADA lists 12 specific "places of public accommodation" that must be fully accessible to disabled people -- from theaters and restaurants, to private schools and child care centers. All of them have physical locations.
But Patel saw the website as a "service" provided by other "places of public accommodation: Target's stores. Indeed, she pointed out, the complaint's allegations suggested that the Website "is heavily integrated with the brick-and-mortar stores and operates in many ways as a gateway to the stores."
It was not significant, from an ADA perspective, Patel held, that the websites were not physically situated inside the stores. She noted that the ADA "applies to the services of a place of public accommodation, not services in a place of public accommodation." (Emphases added.) She added, "To limit the ADA to discrimination in the provision of services occurring on the premises of a public accommodation would contradict the plain language of the statute."
Accordingly, Judge Patel is allowing the suit to go forward -- but only in instances where the plaintiffs can allege that the inaccessibility of Target.com impacted the full and equal enjoyment of goods and services offered for sale in Target stores. She dismissed parts of the complaint "[t]o 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."
Judge Patel concluded, "The website is a means to gain access to the store and it is ironic that Target, through its merchandising efforts on the one hand, seeks to reach greater numbers of customers and enlarge its consumer-base, while on the other hand it seeks to escape the requirements of the ADA. A broader application of the ADA to the Web site may be appropriate if upon further discovery it is disclosed that the store and Web site are part of an integrated effort."
What Will Happen Next in the Suit? Possible Discovery
Although Patel's ruling is significant, the suit is not yet over; civil discovery has yet to occur.
When the NFB asked Judge Patel to order Target to immediately make its website accessible right away, she denied the motion - since fact-finding has yet to occur as to whether the average blind person is able to access Target's website. Both the NFB and Target have submitted expert affidavits, as well as affidavits of visually impaired shoppers, about their experiences navigating Target.com.
Further discovery seems likely, regarding this issue, as well as the issue of whether additional links between brick-and-mortar stores, and website services, can be established - thereby potentially triggering broader ADA coverage.
Why Judge Patel's Ruling Is Significant: The First of Its Kind
Judge Patel's ruling is especially important because it's the first of its kind. Other similar suits have settled - in part because, in 1996, the Justice Department issued a legal opinion that the ADA applies to the web. And one decision wrongly holds that the ADA does not apply.
Facing suit by the NFB, AOL agreed to make its sites fully navigable for the visually-impaired. In 2004, New York State Attorney General Elliot Spitzer brought a similar action against online retailer Priceline.com and Ramada Hotels. Like AOL, the two companies agreed to make their websites accessible. (Interestingly, though, if Patel's ruling is correct, the mostly-online Priceline.com may not have been legally required to do so.)
Finally, there was a Florida case against Southwest Airlines, taking issue with the accessibility of Southwest.com, that was dismissed. As I argued in a prior column, that decision was in error.
It also may have been misargued: While the plaintiffs argued on appeal that Southwest.com was a "travel service," the appellate court ignored that argument as waived, as it had not been properly raised in the district court. Moreover, it appears that the plaintiffs never made the argument that convinced Judge Patel: That Southwest is a "place of public accommodation," as to which Southwest.com provides services. Accordingly, the U.S. Court of Appeals for the Eleventh Circuit dismissed the appeal on procedural grounds.
Congress Should Expand the ADA to Reach All Commercial Websites
As noted above, Judge Patel's ruling may leave disabled customers of web-only commercial sites out of luck - and Congress should step in to protect them.
After all, it's not just that web shopping is more convenient - which in itself is a reason it should be disabled-accessible. It's also that web-only stores sometimes offer web-only discounts and services that the visually-impaired are effectively denied if the sites aren't accessible.
That raises the possible specter of a new form of discrimination - where the disabled end up paying more for the same goods and services, or losing out on valuable service options. Many industries tend to incentivize Internet booking and purchasing since it is cheaper, typically requiring little or no human aid. Accordingly, the risk of such discrimination is very real.
One of the major goals of the ADA is to remove barriers that prevent people from accessing important services. Requiring ramps and elevators is only the beginning; the ADA also protects disabled individuals against other forms of exclusion and "relegation to lesser services, programs, activities, benefits, jobs, or other opportunities." In our Internet age, can it be doubted that being offered only a partial, non-Web set of services, is being offered "lesser services"?
When the ADA was enacted in 1990, the Internet had not yet burgeoned into a thriving commercial marketplace for goods and services. Now that it has, the law needs to change to keep pace with our changing ways of doing business.
Does the Americans with Disabilities Act Require that Commercial Websites Be Accessible to the Blind?
A Recent Court Ruling Suggests the Answer Is Yes, But Only for Certain Sites
Anita Ramasastry
http://practice.findlaw.com/cyberlaw-100306.html
October 3, 2006
Just last month, U.S. District Judge Marilyn Hall Patel -- of the San Francisco-based U.S. District Court for the North District of California - ruled that the Americans with Disabilities Act (ADA) applies to some commercial websites. The holding was the first of its kind.
Unless Judge Patel's ruling is reversed on appeal, its upshot will likely be that many retail websites - in particular, those intrinsically linked to companies' brick-and-mortar operations - will have to start complying with the ADA.
However, because Judge Patel's decision did not reach web-only retailers, it may be necessary for Congress to revisit the ADA if it wishes to ensure that all web retailers make their sites accessible.
Given that there are some very significant web-only sellers - eBay and Amazon.com come immediately to mind - Congress should seriously consider this option. (Some groups have lobbied Congress to modify the ADA to explicitly cover the Internet, but the law has yet to be changed.)
The Lawsuit That Prompted Judge Patel's Ruling
The ADA suit, filed in February of this year, was brought by Bruce Sexton, Jr., a blind University of California-Berkeley student. In conjunction with the National Federation of the Blind (NFB), Sexton alleged that Target's website violates the ADA because it is not fully navigable by the visually-impaired. (Sexton has also sought class action status on behalf of those similarly-situated.)
In particular, Sexton and the NFB say that Target.com lacks properly embedded "alt" tags - which are used to provide brief text descriptions of web page components. Without such tags, computerized screen readers cannot describe aloud webpage contents to visually-impaired computer users. The plaintiffs say Target.com's alt tags are sometimes misleading, and sometimes simply missing.
Target's Argument: The Website Is Not a "Place of Public Accommodation"
Target sought to dismiss the suit on the ground that the ADA did not apply. But Judge Patel disagreed. She reasoned that "the 'ordinary meaning' of the ADA's prohibition against discrimination in the enjoyment of goods, services, facilities or privileges, is that whatever goods or services the place provides, it cannot discriminate on the basis of disability in providing enjoyment of those goods and services." (Emphasis added.)
Target's argument was that its website was not a "place of public accommodation" that the ADA requires to be accessible. Currently, the ADA lists 12 specific "places of public accommodation" that must be fully accessible to disabled people -- from theaters and restaurants, to private schools and child care centers. All of them have physical locations.
But Patel saw the website as a "service" provided by other "places of public accommodation: Target's stores. Indeed, she pointed out, the complaint's allegations suggested that the Website "is heavily integrated with the brick-and-mortar stores and operates in many ways as a gateway to the stores."
It was not significant, from an ADA perspective, Patel held, that the websites were not physically situated inside the stores. She noted that the ADA "applies to the services of a place of public accommodation, not services in a place of public accommodation." (Emphases added.) She added, "To limit the ADA to discrimination in the provision of services occurring on the premises of a public accommodation would contradict the plain language of the statute."
Accordingly, Judge Patel is allowing the suit to go forward -- but only in instances where the plaintiffs can allege that the inaccessibility of Target.com impacted the full and equal enjoyment of goods and services offered for sale in Target stores. She dismissed parts of the complaint "[t]o 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."
Judge Patel concluded, "The website is a means to gain access to the store and it is ironic that Target, through its merchandising efforts on the one hand, seeks to reach greater numbers of customers and enlarge its consumer-base, while on the other hand it seeks to escape the requirements of the ADA. A broader application of the ADA to the Web site may be appropriate if upon further discovery it is disclosed that the store and Web site are part of an integrated effort."
What Will Happen Next in the Suit? Possible Discovery
Although Patel's ruling is significant, the suit is not yet over; civil discovery has yet to occur.
When the NFB asked Judge Patel to order Target to immediately make its website accessible right away, she denied the motion - since fact-finding has yet to occur as to whether the average blind person is able to access Target's website. Both the NFB and Target have submitted expert affidavits, as well as affidavits of visually impaired shoppers, about their experiences navigating Target.com.
Further discovery seems likely, regarding this issue, as well as the issue of whether additional links between brick-and-mortar stores, and website services, can be established - thereby potentially triggering broader ADA coverage.
Why Judge Patel's Ruling Is Significant: The First of Its Kind
Judge Patel's ruling is especially important because it's the first of its kind. Other similar suits have settled - in part because, in 1996, the Justice Department issued a legal opinion that the ADA applies to the web. And one decision wrongly holds that the ADA does not apply.
Facing suit by the NFB, AOL agreed to make its sites fully navigable for the visually-impaired. In 2004, New York State Attorney General Elliot Spitzer brought a similar action against online retailer Priceline.com and Ramada Hotels. Like AOL, the two companies agreed to make their websites accessible. (Interestingly, though, if Patel's ruling is correct, the mostly-online Priceline.com may not have been legally required to do so.)
Finally, there was a Florida case against Southwest Airlines, taking issue with the accessibility of Southwest.com, that was dismissed. As I argued in a prior column, that decision was in error.
It also may have been misargued: While the plaintiffs argued on appeal that Southwest.com was a "travel service," the appellate court ignored that argument as waived, as it had not been properly raised in the district court. Moreover, it appears that the plaintiffs never made the argument that convinced Judge Patel: That Southwest is a "place of public accommodation," as to which Southwest.com provides services. Accordingly, the U.S. Court of Appeals for the Eleventh Circuit dismissed the appeal on procedural grounds.
Congress Should Expand the ADA to Reach All Commercial Websites
As noted above, Judge Patel's ruling may leave disabled customers of web-only commercial sites out of luck - and Congress should step in to protect them.
After all, it's not just that web shopping is more convenient - which in itself is a reason it should be disabled-accessible. It's also that web-only stores sometimes offer web-only discounts and services that the visually-impaired are effectively denied if the sites aren't accessible.
That raises the possible specter of a new form of discrimination - where the disabled end up paying more for the same goods and services, or losing out on valuable service options. Many industries tend to incentivize Internet booking and purchasing since it is cheaper, typically requiring little or no human aid. Accordingly, the risk of such discrimination is very real.
One of the major goals of the ADA is to remove barriers that prevent people from accessing important services. Requiring ramps and elevators is only the beginning; the ADA also protects disabled individuals against other forms of exclusion and "relegation to lesser services, programs, activities, benefits, jobs, or other opportunities." In our Internet age, can it be doubted that being offered only a partial, non-Web set of services, is being offered "lesser services"?
When the ADA was enacted in 1990, the Internet had not yet burgeoned into a thriving commercial marketplace for goods and services. Now that it has, the law needs to change to keep pace with our changing ways of doing business.