Court Rules Against Target, Says Web Sites Accessibility Lawsuits Can Continue

When a federal court judge issued rulings on Tuesday that the $60 billion retailer needed to stand trial on charges that it's 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 Tuesday. The first was that the case was certified as a class action for a group of visually-impaired American consumers, acting under the Americans With Disabilities Act (ADA). The court also held that Target.com is required by California law to be accessible.

To put this into context, these are both preliminary legal decisions, the net effect of both will be to simply allow litigation to continue, potentially heading to a trial. As a practical matter, 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 problems. 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 are rely on a site's 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. 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. "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 Corporation has led a battle against blind consumers in a key area of modern life: the Internet economy. 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. But Target corporate did issue a brief statement, where he said it was pleased that one consumer's claims were dismissed and that "we are disappointed that a class has been certified. Class certification is a procedural ruling only and in no way addresses the merit of the claims brought forward by the National Federation of the Blind."

The Target statement said that the retail chain "is committed to serving all of our guests and we believe that our Web site is fully accessible and complies with all applicable laws. As our online business has evolved, we have made significant enhancements to improve the experience of our guests who use assistive technologies." The statement then referenced a document that Target said was "an internal NFB E-mail" obtained during discovery.

That E-mail context is unclear as Target released the letter with explanation. It appears to be a communication from Chris Danielson?which is the name of a well-known advocate for the blind to James Gashel, an apparent NFB official. In the E-mail dated Dec. 2, 2006, Danielson said Target had "made some rather drastic improvements" and "overall, I'd have to say that the site is usable by a blind person."

The Target statement added: "We will request an immediate review of the ruling granting class certification and we are confident that we will prevail on the merits of this case."

In her rulings, Hall gave Target only two victories. The first was ruling that part of one witness' testimony can be struck because she was an expert witness who hadn't created a sufficient foundation for some claims.

The other was that one consumer plaintiff?Bruce Sexton?was removed by the court. Although Target trumpets that as a victory, the judge's instructions that simply another consumer be used blunted how much it would help Target.

The Target statement questioned how easy that would be: "In nearly a year and half of litigation, the NFB has been able to produce only one individual, Mr. Bruce Sexton, to act as a class representative and his ADA claim has been dismissed. "

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 is that, subsequent to these lawsuits having been filed, the retail chain made several improvements to their site that were supposed to improve accessibility for those visually impaired. Target argued that the improvements already gave the plaintiffs much of what they wanted, making the lawsuit moot. Hall disagreed.

The attorneys for the consumers "concedes 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 possibly seeking the help of others. But since they had indeed completed their purchase, Target argued, 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 website?s inaccessibility. According to Target, these shoppers merely experienced inconvenience," the judge 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: that 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."

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