Is this the test case we’ve all been waiting for?

Summary: Target case now open for class action and every blind person in the U.S. who has tried to access Target.com can become a plaintiff.

Summary of summary: Target, you’re screwed.
[Well, maybe … possibly, but I am not a lawyer, usual disclaimers apply]

Many times in the past when explaining to people why accessibility is important, I’ve rolled out the legal argument – why it’s something that you should do if you want to be on the right side of the law, whether that’s the Americans with Disabilities Act (ADA) in the States or the Disability Discrimination Act (DDA) in UK. But when asked for examples, I’ve always had to pull out the Australian Sydney 2000 Olympics case .. and that’s about it. The legal threat has always felt just that – a threat, not a reality. To that extent, I don’t tend to lead with the legal reason now, instead focusing on the business benefits of getting accessibility right and the moral reasons. But that may be about to change.

Early last year, a California resident brought a legal case against Target.com because of their web site’s inaccessibility. It looked for a while like it might ‘quietly go away’ as has often happened in the past, mainly because Target made some changes and also Amazon announced that it would be working with the National Federation of the Blind (NFB), a move which seemed out of character to many - and the significance of this is that Amazon, often touted as an example of inaccessible page design, is powering Target.com’s e-commerce capabilities. In short, it looked like Amazon might be cozying up with ‘the enemy’ to appear to be doing the right thing. Well, that’s largely irrelevant now, as it doesn’t appear to have helped in the long run.

The Target case has reared its head once more and the U.S. District Court for the Northern District of California has certified the NFB lawsuit against Target as a class action and ruled that websites like Target.com are required, under California state law, to be accessible. This means that any blind user in the states who has tried to access Target.com can join the class action which must, surely, spell a whole heap of trouble for Target. It’s the test case that the accessibility community knew had to happen one day – and indeed were welcoming it – while the business world tried the old emu avoidance method by sticking their head in the ground and hoping they don’t get caught. Or is that ostriches? Matt May wrote the following on the topic in February last year:

But I’ve also seen cases where it’s a legal game of chicken: some companies refuse to comply with a legal mandate that they feel doesn’t clearly apply to them. They’re gambling that the cost of being found guilty of non-compliance is lower than that of conforming to a standard that may not apply to them. This strategy falls apart like a house of cards as soon as one of them is found liable. And it’s a tactic I find particularly odious when they’re consciously acting to keep users with disabilities out.

So this one looks like it’s going to run and run and not, as Target might have hoped, quietly go away. One question to ask at this stage is how this might spill over to other countries – will UK look at this case and take it as a precedent? Like I said, I’m not a lawyer, so if you are please add your thoughts in the comments.

Filed under: Uncategorized
Posted by Ian on Friday, October 5, 2007

11 Comments

  1. So says JackP

    Ian, traditionally, the UK Disability Discrimination Act is known as the DDA, rather than the ADA :-)

    Feel free to delete this comment when you’ve fixed it!

    Added October 5, 2007 at 11:36 am

  2. So says Ian

    Ah shucks, copy-paste error, but duly corrected - thanks Jack :)

    Added October 5, 2007 at 6:20 pm

  3. So says Rob L.

    And it’s a tactic I find particularly odious when they’re consciously acting to keep users with disabilities out.

    Doubly odious because it’s just not that hard to provide the accessibility… so the cost of conformance really isn’t that high. I heard a NPR story this week about case, and it quoted the NFB (or maybe it was the individual who first filed the suit) as saying that Wal-Mart’s site offers excellent accessibility (even with 30+ validation errors on the homepage — it appears to be good enough). If they can do it, there’s no defensible reason whatsoever that Target can offer.

    Added October 5, 2007 at 7:07 pm

  4. So says Rob L.

    Whoops, sorry, rushed it and broke markup :(

    Added October 5, 2007 at 7:07 pm

  5. So says Jon Tan

    There’s an interesting quote from the judgement via the PR Newswire article that seems to indicate that the ADA applies in full (as well as Californian state law):

    The court held: “the ‘ordinary meaning’ of the ADA’s prohibition against discrimination in the enjoyment of goods, services, facilities or privileges, is that whatever goods or services the place provides, it cannot discriminate on the basis of disability in providing enjoyment of those goods and services.”

    Hopefully, that will be upheld throughout, and can either empower other worldwide advocacy groups to press for access, or motivate companies to comply.

    Added October 6, 2007 at 11:51 am

  6. [...] Accessify.com: Court Approves Target Class-Action? [...]

    Added October 8, 2007 at 3:56 am

  7. [...] Accessify: latest news / Is this the test case we’ve all been waiting for? “Target case now open for class action and every blind person in the U.S. who has tried to access Target.com can become a plaintiff.” (tags: accessibility) [...]

    Added October 9, 2007 at 1:30 am

  8. So says Andrei Eftimie

    Uhm, this is sort of ridiculous. I am pro accessibility.

    Lets take a real world type of example.
    I have a small store, and i only have some steep stairs leading to it. That would result in disabled persons just shopping at the next store that has a ramp. So i’m losing some customers. Why should this be a legal concern?! If i don’t care about my business, that should be my problem. I haven’t forced anyone in a wheelchair to climb those stairs.

    This should be applicable to sites. (maybe except government official sites where they would need to allow access to every citizen)

    But why a lawsuit? Just go and buy from another site!

    Added October 11, 2007 at 3:39 pm

  9. So says Gurukarm Khalsa

    I feel compelled to respond to comment #8, although no expert: it’s really rather specious to say “just go somewhere else” - what if you sell the ONE thing the customer is looking for, and no other store does? What if Target has exactly the brand, or line, or model of an item someone needs, and anywhere else it’s half again as expensive? Too bad for you, blind customer?

    Bad attitude, Mr. Eftimie. Even in spite of your “pro accessibility” disclaimer. I hope you DON’T have a store. Or, if you do, please tell us where it is, so we can be sure NOT to shop there.

    Added October 12, 2007 at 8:23 pm

  10. The real underlying problem is a lack of motivation to do anything about accessibility. Even with the requirements of the DDA and more recently the Disability Equality Duty (which applies to UK public bodies) there is still barely even lip service paid to accessibility.

    Added May 31, 2008 at 1:46 pm

  11. In my eyes it is sad but true. Companies only think economically and when the price for beeing guilty is less then the price to upgrade for accessibility for disabled persons than they will decide for the first solution. Of course they have to add the strategic price component of image lost to the calculus. On the other hand imagine you try to run a business and your start up is bashed just because a group, let´s call them DDA, pulls you at court.

    Added August 7, 2008 at 5:22 pm

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