11.02.2007... C'mon, now....

Court Rules Against Target in Web Site Accessibility Lawsuits
By Evan Schuman
October 3, 2007

A judge rules that the retailer needs to stand trial for having a Web site that is insufficiently accessible.

When a federal court judge issued rulings Oct. 2 that the $60 billion retailer Target needed to stand trial on charges that its Web site is not sufficiently accessible to visually-impaired shoppers, it sent a strong signal to much of the e-commerce space.

Target has long been the most prominent opponent of forcing e-commerce site executives to adhere to accessibility rules designed for their brick-and-mortar counterparts.

U.S. Court Judge Marilyn Hall Patel, sitting in the Northern District of California, issued two critical rulings. The first was that the case was certified as a class action for a group of visually-impaired U.S. consumers, acting under the ADA (Americans with Disabilities Act). The court also held that Target.com is required by California law to be accessible.

These are both preliminary legal decisions—the net effect of both will be to simply allow litigation to continue, potentially heading to a trial. These kinds of cases typically settle out of court, especially as late-stage pre-trial motions are decided, often weakening one side and thus encouraging compromise from that side.

The broad issue in the case is how far a Web site should be required to go to be usable to customers who have visual impairments. That can range from total blindness to color blindness to those who need to see larger characters.

There are many applications that are designed to make Web sites accessible to the blind, but they rely on sites using standard programming. This typically includes small text tags next to images, so the software can speak the words aloud.

The complicated animation and other scripts that frustrate applications for the visually impaired are often also responsible for slowing page display so compliance sometimes has the added benefit of accelerating a site's performance. Huh??? On the downside, strict compliance to ADA Web guidelines would prevent or limit some cutting-edge applications that are becoming more popular as broadband connections—and faster broadband connections at that—become much more widespread.

Predictably, advocates for the visually impaired applauded the rulings.

"This is a tremendous step forward for blind people throughout the country who for too long have been denied equal access to the Internet economy," said Marc Maurer, the president of the National Federation of the Blind, in a statement. "All e-commerce businesses should take note of this decision and immediately take steps to open their doors to the blind."

Larry Paradis represents the Disability Rights Advocates and is also one of the attorneys involved in the litigation. "Target Corp. has led a battle against blind consumers in a key area of modern life: the Internet economy," he said in a statement. "The court's decision today makes clear that people with disabilities no longer can be treated as second-class citizens in any sphere of mainstream life. This ruling will benefit hundreds of thousands of Americans with disabilities."

Representatives of Target did not respond to a request for comment.

In her rulings, Patel gave Target one small victory, ruling that part of one witness' testimony could be struck because she was an expert witness who hadn't created a sufficient foundation for some claims. Other than that, the judge ruled fully against Target.

One of the key arguments that attorneys for Target made in trying to get the case dismissed was that, subsequent to these lawsuits having been filed, the retail chain made several improvements to its site that were supposed to improve accessibility for the visually impaired. Target argued that the improvements already gave the plaintiffs much of what they wanted, making the lawsuit moot. Patel disagreed.

Attorneys for the consumers conceded "that the modifications have increased accessibility for the blind. Target does not assert that all of plaintiffs' accessibility claims have been addressed by the recent modifications and even the most favorable understanding of these modifications would suggest that only one aspect of the claims has been fully addressed: keyboard accessibility," the judge wrote. "Moreover, the continuous addition of new pages to Target.com argues against a mootness finding. Aside from the incompleteness of the modifications and the potential for new pages, it is well-settled law that 'voluntary cessation of allegedly illegal conduct does not make the case moot.'"

Another Target argument had been that many site visitors were able to make their purchases, albeit with a lot of extra effort and the help of others. But since they had indeed completed their purchase, Target argued that they had no claim. In cases where the consumer had not made any purchases because the site's lack of accessibility drove them away, Target argued, there was again no damage as it's impossible to prove what the customer would have done had the site been perfectly accessible.

The judge disagreed with both.

"Target's argument based on the speculative purchases would defeat most ADA claims. There is no requirement that a plaintiff who encounters physical accessibility barriers—such as a wheelchair user who confronts a store without ramps at its entrance—must provide a shopping list of products available at the store in order to proceed with an ADA claim," the judge ruled. "Rather, it is sufficient that the (consumers who are suing Target) have alleged that they were denied access, by being diverted to another store, in order to meet the class definition."

As for the Target argument that many of the purchases were ultimately made, albeit with help, the judge offered a different perspective. "Certainly, forced reliance on other people is injurious in many respects. Again, Target responds that none of these (consumers) were absolutely prohibited from entering the Target stores and making purchases as a result of the [Web site]'s inaccessibility. According to Target, these shoppers merely experienced inconvenience," Hall ruled. "Target contends that equal convenience is not required by ADA. Therefore, the fact that (the suing consumers) spent more time to accomplish the same tasks as sighted persons and required assistance from in-store personnel or guides does not render the stores inaccessible."

The judge continued: "Like its argument that deterrence does not constitute inaccessibility, this argument, too, is overbroad. A wheelchair user is not prohibited from entering a store without a ramp: [T]hat person could be carried into the store by the store personnel or hire a guide to do so. Nevertheless, those accessibility barriers, even where they may be accommodated, would generally violate the ADA. Similarly, the increased cost and time to surmount the alleged barriers presented by the inability to pre-shop demonstrate that these (consumers) have met the class definition. Target's reliance upon their ability to accommodate blind shoppers through other means, such as in-store assistance or a 1-800 customer service number is misplaced at this stage. As the court noted at the outset of this litigation, the method of accommodation is an affirmative defense."

So, at what point does it stop making sense to make any and all new technologies perfectly accessible to people who had limited access to the old technologies in the first place???

If i could not get into a store because I was wheelchair-bound, we can force the store to build ramps, automatic doors, and so on. If they don't make the brick-and-mortar outlets equally accessible to me, perhaps we should force them, as the article hints, to provide a catalog, a shopper to describe and find and collect the merchandise for me and then help me with the purchase and carry-out to my car [or if I'm blind, to whatever transportation I used to get there?]....... And if I'm color-blind, should they be forced to help me make selections which would not be embarrassing for me to wear because I can't tell red from green or blue from gray?

I fear that, in its usual "California PC Way," the judges are now moving towards guarantees of "equal results" and not "equal opportunities." Perhaps some will see there is a difference between the two and the wisdom of trying to achieve the former when the latter is really the appropriate goal. Unless you favor Hillary for President...

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