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Ever since the passage of the Rehabilitation Act back in 1973, then the passage of the Americans with Disabilities Act in 1990 and the adoption of regulations [particularly, Section 508] governing accessibility for federal agencies and contractors, the extent of coverage has been challenged. In fact, for a long time the concept of an internet-based web site being accessible to the disabled seemed out of the realm of consideration. However, over time that viewpoint has been chipped away at with lawsuits against Southwest Airlines, Ramada.com, Barnes and Nobles, and Priceline.com among others. The result was that in September 2006, a federal judge in California held that the National Federation of the Blind could sue Target Corporation for its maintenance of a inaccessible website. National Federation of the Blind et. al. v. Target Corporation, Case. NO. C 06-01802, N. D. CA (September 6, 2006).
When the Americans with Disabilities Act (ADA) was passed, the Internet was not all pervasive in commerce. The ADA does not specifically list the Internet or World Wide Web (WWW) as subjects of the requirements found in Title III for public accommodations. Although the ADA has a Public Accommodations provision applicable to many public services, web sites and web-based communication is not mentioned. Most of the places covered by the definitions in Title III were described as physical structures: inn, hotel, restaurant, convention center, grocery store, bank, professional office of service provider, public transportation station, library, zoo, school, and other such places. 42 U.S.C. § 12181(7). This fact was pounced upon by Target as it sought to have the suit filed by the NFB tossed out because Target.com [the website of Target Corporation] is not covered as a place of public accommodation as defined in the ADA, as no one is being denied physical, equal access to Target stores, the only physical place of public accommodation owned by Target.
In her ruling denying the motion, the Honorable Judge Marilyn Hall Patel of the federal district court in the northern district of California held that the terms of the ADA are not to be read that narrowly, permitting the plaintiff’s suit to go forward.
The problem with Target’s contention that only actual physical structures are covered is that such a definition ignores a host of services which, while they may have a physical component, consist mainly of the provision of something less physical in nature. For example, Title III specifically includes the “office[s]” of a lawyer, doctor, accountant or insurance agent, but doesn’t mention the actual provision of services, only the location.
This failure to indicate that the physical setting of services also includes the provision of those services has caused problems since the passage of the ADA. Courts have issued rulings on both sides of the issue, and no definitive answer is yet available from the Supreme Court. However, several authors have examined the application of the ADA’s Title III and the Section 508 Regulations to private enterprise providing services through the Internet. As is clear from reviewing these resources, the coverage of the ADA, particularly regarding a target as fluid as the Internet, is a moving target and any research in this area really should be done in full light of all facts and as current as possible.
The court’s ruling in National Federation of the Blind et. al. v. Target Corporation [“NFB”] is the latest indication of an understanding that the services covered by Title III need not only be found in a physical structure. In NFB, the court not only denied the plaintiff’s request for a preliminary injunction, but also the defense motion to dismiss on several important grounds related to the application of the ADA to internet web sites.
As noted by the judge, the ADA differs from other civil rights acts in its requirement that providers of public accommodations actually take affirmative steps to accommodate the disabled. The question raised by this case in the complaint and the defense motion to dismiss was whether Target’s website, Target.com, had to meet the same standards for non-discriminatory access as its physical stores. The answer was a clear ‘yes’, although the issuance of an injunction would not follow without further discovery.
The court based its decision on three factors to defeat the motion for dismissal filed by the Defendant. First, unequal access to the website of Target is as much illegal as if it happened at a physical Target store. “The statute [ADA] applies to the services of a place of public accommodation, not services in a place of public accommodation”. NFB, slip op. at p. 7, citing 42 U.S.C. § 12182(a). A limitation of the ADA to only services on the physical premises of an accommodation would contradict the language of the ADA.
Second, the court held that the ADA applies to services which impede physical access as well as services offered by the facility. That is a “false dichotomy” and would limit the terms of Title III too narrowly.
Finally, the court noted that the ADA ensures accessibility to goods and services under Department of Justice regulations which recognize that some flexibility might be needed in determining how to meet the statute’s requirement of public accommodation. Therefore, the court would not grant the motion because it was premature and would require further development of the evidence. Obviously, the denial of this motion to dismiss is only the first resolution of the first salvo fired in the battle. No doubt, Target Corporation, if it doesn’t reach a settlement with the NFB and other plaintiffs will move for summary judgment on somewhat the same grounds and the ruling may, or may not, be different. Much will depend on the development of the evidence through discovery.
There were discussions of California laws in this decision as well, since the case was filed under those in addition to the suit under the federal ADA. But, this memorandum’s discussion focuses on the court’s interpretation of the federal statute since that statute could be used in any jurisdiction [i.e., outside California] to enforce the requirement of a reasonable accommodation and accessibility for an internet-based web site.
Businesses need to determine who is responsible for accessible Intranet and Internet websites, understand how inaccessible websites affect their employees and customers, and weigh how much it would cost to repair the accessibility problems rather than litigate inevitable complaints in the courts.
Clearly, only the developer of the website has the ability to integrate accessibility features into the website’s design. People with disabilities who utilize assistive technologies which allow them to interact with computer based information can only utilize those tools if the website has certain design and programming characteristics available. These accessibility features are usually only discernable to the assistive technology user and not to website users as a whole.
Currently, there are nearly 40 million people, out of a total U.S. population of 300 million, with some form of visual, auditory, mobility or cognitive disability. Nearly 50% of these individuals are actively employed in the workplace and the estimated disposable income of people with disabilities in America is approximately $200 billion dollars per year. Additionally, nearly 70 million “Baby Boomers” are rapidly approaching the age of 65 during the next 15 years. The reason this is critically important is the fact that nearly 50% of American’s over the age of 65 will develop some type of disability.
People with disabilities are our children, brothers, sisters, parents, neighbors, co-workers and friends. To exclude these people from opportunities to excel as employees in the workplace or from the opportunity to do business with businesses via websites and other Internet based technologies, is simply bad business.
There are few, if any, businesses in our economy which can afford to ignore a $200 billion dollar market segment. Those corporations who are first to market with accessible websites will quickly acquire a large and loyal following of customers and/or employees.
So, ultimately what does it cost to make a website accessible? Not much at all when compared to legal fees. On average, most corporate websites can be audited by independent third-party accessibility auditors for well under $20,000. For eCommerce sites that allow online transactions, the cost varies based on the size and complexity of the website, but usually cost less than a few weeks worth of legal fees.
So why isn’t everyone working to make their online resources accessible? Quite simply, it is due to lack of awareness. It is difficult to resolve problems when we aren’t aware of their existence. For example, when wheelchair accessibility ramps were first proposed most people felt there was little need and the costs too high. Today, no one would argue the value of accessible ramps to building or accessible cut outs in sidewalks. Every parent who has ever pushed a baby-stroller is grateful for these features, as is the weekend athlete with a broken ankle or the aging executive with early symptoms of arthritis or Parkinson’s disease.
As our collective awareness of the prevalence of disabilities in America continues to increase, we can only hope there will be fewer instances of corporations like Target Corp. spending tens of thousands of dollars in legal fees to avoid their social responsibilities, and more instances of corporations spending the equivalent of an executive golf outing to greatly increase their bottom-line and increase the hiring and retention of qualified and dedicated employees.
Written by
Victoria L. Herring, Attorney at Law
& Anna Bradley M.S., Ed.S. President
Criterion 508 Solutions, Inc.