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California court tilts towards mandating web accessibility

Target.com out of sight for blind people

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California law may require websites to be accessible to disabled internet users, according to a ruling in a case against retail giant Target. Despite recent improvements to the accessibility of Target.com, the case has now been certified as a class action.

Target was sued by the National Federation of the Blind (NFB) and one of its blind members, Bruce Sexton, under a federal law, the Americans with Disabilities Act (ADA), and also under two state laws, the California Disabled Persons Act and the California Unruh Civil Rights Act.

The NFB and Sexton argue that Target.com is not accessible to blind internet users, in breach of these federal and state laws. They complained that images on the site were missing alternative text upon which blind users rely; keyboard controls do not work, meaning users must be able to work a mouse; and headings are missing that are needed for navigation.

US District Judge Marilyn Hall Patel in the Court for the Northern District of California had previously ruled that the inaccessibility of Target.com impeded full and equal enjoyment of goods and services offered in Target stores pursuant to the ADA. She has now ruled that the case is eligible for class action status and she rejected an effort by Target to have the case thrown out.

The President of the NFB, Dr Marc Maurer, said last week: “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. All e-commerce businesses should take note of this decision and immediately take steps to open their doors to the blind.”

Key questions in the lawsuit remain to be resolved, though. A UK lawyer said that these will be vital in determining the ruling's impact on other businesses in the US.

Improvements at Target.com

Since the case began, Target has made improvements to the site's accessibility. Target said that because it had made these changes, the claims against it are now "moot". Judge Patel disagreed. While it was accepted that accessibility had improved, making it "more likely that a blind user could complete a transaction," according to an expert for the NFB, it was noted that problems remain. Judge Patel wrote, "even the most favorable understanding of these modifications would suggest that only one aspect of the claims has been fully addressed: keyboard accessibility."

"Moreover, the continuous addition of new pages to Target.com argues against a finding of mootness," she wrote.

State laws

Noting that the language of the California state laws is broader than that of the ADA, Judge Patel found that websites should be covered. "[The] Unruh Act and the DPA reach Target.com as a kind of business establishment and an accommodation, advantage, facility and privilege of a place of public accommodation, respectively. No nexus to the physical stores need be shown," she said.

The Unruh Act provides that all persons in California are free and equal, and no matter what their disability "are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever."

The DPA guarantees that individuals with disabilities are entitled to full and equal access to various listed places, "and other places to which the general public is invited".

Judge Patel defined the class action as eligible to represent "all legally blind individuals in California who have attempted to access Target.com" under the Unruh Act and the DPA.

However, key questions remain on each state law.

Previous cases have suggested that the Unruh Act only applies to intentional discrimination unless the case is premised on an ADA violation. The NFB contends that disability discrimination is characterised by inaction, arguing that the previous ruling that saw a need to prove intention as inappropriate. Judge Patel sympathised: "the legislative history of the [Unruh] Act and its subsequent construction tilts in favor of [the NFB's] preferred reading," she wrote. But she stopped short of ruling definitively on the need to prove intention or whether that intent existed in this case.

Another key question that remains unanswered is the meaning of "full and equal access" under the DPA in the context of a website. What that means when setting the applicable standards "is still an open question," wrote Patel.

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