Target v. Accessibility

1. Target v. Accessibility Understanding the facts behind the Target Accessibility Lawsuit

2. Understanding the Case • The Plaintiffs • The Defendant • The Legal Issue • Target’s Accessibility Barriers • The Lawsuit • Interesting Developments • What it All Means

3. The Plaintiffs • Disability Rights Advocates (DRA)A "non-profit law firm dedicated to protecting and advancing the civil rights of people with disabilities [that] advocates for disability rights through high-impact litigation, as well as research and education." • National Federation for the Blind (NFB)The largest membership organization of blind people in the United States.  The goal of the NFB is to improve "blind people’s lives through advocacy, education, research, technology, and programs encouraging independence and self-confidence."  • James P. MarksA legally blind member of the NFB who uses screen access software to access the internet. James claims that, due to the inaccessibility of Target.com, he and many others like him has to pay an aide to accompany him when he does shop at Target online. • Bruce F. SextonA legally blind third year student at University of California at Berkley and president of the California Association of Blind Students.  Bruce claims he has been “denied the full use and enjoyment of facilities, goods and services of Target.com.” • Melissa Williamson Melissa is legally blind and a member of the NFB who uses screen access software to access the internet. Melissa claims that because of accessibility barriers on Target’s website, she, and many others like her, has been denied the full enjoyment of the facilities, goods and services offered by the website and the retail stores. • Unnamed PlaintiffsThe named plaintiffs also seek to represent a class consisting of individuals like themselves who were similarly denied the “full enjoyment of the facilities, goods and services offered by the website and the retail stores.”

4. The Defendant • Target Corporation • A for-profit corporation. • Has approximately 1,400 stores in 47 states, including 205 stores in California. • Operates a website service, Target.com, which provides public access to the products and services offered in their physical stores. • Target declares that they "strive to make our goods and services available to all of our guests, including those with disabilities."

5. The Legal Issue • Congress enacted the ADA in 1990 making it illegal to discriminate on the basis of disability.  • Title III of the ADA "prohibits discrimination on the basis of disability by public accommodations and requires places of public accommodation and commercial facilities to be designed, constructed, and altered in compliance with the accessibility standards established by this part.” • A "place of public accommodation" includes "a wide range of entities, such as restaurants, hotels, theaters, doctors' offices, pharmacies, retail stores, museums, libraries, parks, private schools, and day care centers.”

6. The Legal Issue • Since the Internet is never explicitly mentioned in this definition (for the obvious reason that the World Wide Web did not yet exist when the law was passed), federal courts have interpreted the application of this law on the Internet differently. • Internet Is Not a Place of a Public Accommodation • In the 2002 case of Access Now, Inc. v. Southwest Airlines Co., The United States District Court for the Southern District of Florida "held that a place of public accommodation must be a physical concrete structure.  As a web site 'does not exist in any particular geographic location,' it is not a 'place of public accommodation.'  • The United States Courts of Appeals for the Sixth and Ninth Circuits have elevated to appellate law the ruling in Access Now that a public place of accommodation must be a physical location. • The Internet Is a Place of a Public Accommodation • The United States Court of Appeals for the First Circuit has stated that Title III of the ADA is not limited to purely physical structures, although the Court did not specifically address the Internet. • The Court of Appeals for the Seventh Circuit has stated that the core meaning of Title III of the ADA is that “the owner or operator of a store, hotel, restaurant, dentist’s office, travel agency, theatre, Web site, or other facility (whether in physical space or in electronic space) . . . that is open to the public cannot exclude disabled people from entering the facility and, once in, from using the facility in the same way that the nondisabled do.”

7. The Legal Issue • Notable Cases Where No Court Ruled • In 1999, the NFB filed a complaint against America Online arguing that their browser was inaccessible to the blind and incompatible with software used by the blind in violation of Title III of the ADA.  The NFB eventually dropped the lawsuit when AOL agreed to make its software compatible with devices designed for visually impaired users. • In 2004, the Attorney General of New York investigated websites for Ramada and Priceline and concluded that as “places of public accommodation,” they both violated the provisions of the ADA. Ramada and Priceline agreed to make their sites accessible, and so the New York AG agreed not to prosecute them.

8. The Legal Issue • An Analogous Issue • In the case of Martin v. Metropolitan Atlanta Rapid Transit Authority, the United States District Court for the Northern District of Georgia granted a preliminary injunction that required the Atlantic public transit agency to make its Internet communications system accessible to the disabled.  • While this case involved Title II of the ADA dealing with “public agencies” it was the first published decision where a defendant was ordered to make its web site accessible to disabled persons.

9. Target’s Accessibility Barriers • In May 2005, the NFB and the DRA contacted Target asking them to modify their website to accommodate screen-reading technologies. • In July 2005, the DRA and NFB employed Jim Thatcher, an independent Accessibility Consultant, to evaluate Target’s website.

10. Target’s Accessibility Barriers • In his report, Jim Thatcher defines four key issues for accessibility of any site and evaluates Target.com accordingly. • Text equivalents for images: Every image should have associated with it a text equivalent, called alt-text. For visitors to the website who use a screen reader, the alt-text replaces the image and is spoken by a screen reader just like any other text on the page.Verdict: Important images representing links and buttons on the site lacked alt-tags. Examples of these images include "Gift Finder," and "Narrow your results." In addition, alt text that was provided for some important image that represented a button a link were sometimes misleading. For example, a button labeled "Continue to checkout" had the alt-text "Proceed to Checkout.“ • Labeling for forms: Form controls like text entry fields or check boxes require HTML coding that identifies the purpose of the control so that a screen reader user will know what to type in the text field or what is being agreed to with the check box. Verdict: Target.com does not provide labels for any form elements. • Techniques for navigation: Large pages with lots of links are organized into groups or sections. When those section headings are marked up as HTML headings the keyboard users can move from section to section with a single key on the keyboard. Without this accommodation it is extremely difficult to use the page for its intended purpose. Verdict: Pages on Target.com do not provide an easy way for the user to skip main navigation areas, which can be very lengthy. This means that on some pages it might take a blind user over 50 keystrokes to "Continue to the Checkout.“ • Keyboard access: Site functionality should be accessible using the keyboard since users with varying disabilities find it impossible to use a mouse and rely on the keyboard instead. Verdict: The "Continue to Checkout" image representing a button could not be accessed via the keyboard.

11. The Lawsuit • Discussions with Target ended in January 2006 when Target refused to modify their website in the manner NFB specified. • On February 7, 2006 DRA, the FBB, Bruce F. Sexton, James P. Marks, and Melissa Williamson filed a lawsuit against Target Corporation.

12. The Lawsuit • The Complaint: key allegations • Target's website is inaccessible to the blind and incompatible with software used by the blind in violation of three statutes: • Title III of the Americans with Disabilities Act (“ADA”), which prohibits discrimination on the basis of disability by public accommodations. • California Unruh Civil Rights Act, which provides protection from discrimination by all business establishments in California, including housing and public accommodations. • The California Disabled Persons Act, which declares that the physically disabled are entitled to the same right as the able-bodied to full and free use of streets, highways, sidewalks, walkways, public buildings, public facilities, and other public places. • Target’s website "contains thousands of access barriers that make it difficult, if not impossible, for blind customers to use.” • Target.com is an extension of the services offered at Target’s physical stores • The NFB seeks to represent a nationwide class of blind individuals who were harmed by Target’s inaccessible website. • Relief Sought • Monetary damages • Attorney’s fees • An injunction forcing Target shut down its website until it is made accessible • A court’s declaration that Target is breaking the law.

13. The Lawsuit • Request for Dismissal • On March 15, 2006, Target asks the court to dismiss the lawsuit, arguing that Title III of the ADA applies only to physical places.  • Target insists their website is a separate entity from their physical stores and that their website offers 24/7 phone support. • Target’s Witnesses • On June 13, 2006, Target submitted declarations from seven visually impaired individuals who claimed they had no trouble accessing Target’s website. • Expert witness Charles Letourneau, stated that a blind person’s ability to access a website “depends on a host of factors including the screen reader used, the browser used, the user’s technical abilities, the user’s familiarity with the internet in general…and how much time the user is willing to spend exploring the site.”

14. The Lawsuit • The Court’s Rulings • On September 6, 2006, the court denied Target's request to dismiss the case. • The first reported decision allowing a claim of inaccessibility of a web site to proceed against a private entity under Title III of the ADA. • The court found that a "place of public accommodation" must be a physical place. • But, the court agreed with the NBA that Target.com should be viewed as an extension of Target’s physical retail stores, which means the ADA applies to Target.com. • The Court denied the injunction. • The court certified the lawsuit as a Class Action lawsuit, increasing the value of the case exponentially. • Jury Trial date Setfor March 3, 2009.

15. Interesting Developments • Target Makes a Crucial Fix • Within 24 hours of the lawsuit filed against Target, Target fixed one of the barriers on its website addressed in Jim Thatcher’s original report. • This might explain why Target’s witnesses, who made their declarations in June later that year, were able to successfully complete transactions on the site. • Amazon Wants to be Accessible • Target's website is "powered by" technology provided by Amazon.com which also displayed similar issues on its website at the time the lawsuit was filed.  • Since Amazon.com does not have a physical retail presence, however, it is unclear if ADA laws would apply. • On March 28, 2007, the NFB and Amazon announced that they were working together to "promote and improve accessibility in web technology." Specifically, they agreed to the following timetable: • December 31,2007: Amazon’s stores. • June 30, 2008: Stores “powered by” Amazon technology. • Amazon hired Jim Thatcher to consult them in their redesign.

16. What it all Means • The battle is not over. Target could win the case. • The ADA laws do not explicitly mention the internet when defining a “place of public accommodation,” leaving the law up for interpretation. • If Target loses this case, many similar lawsuits are likely to follow, especially with brick and mortar stores who also have websites. • With the amount of internet dialogue and press regarding the Target case, it would not be surprising if other online businesses such as Amazon.com have not already begun to take precautions.